2022

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE HOUSE OF REPRESENTATIVES

Export control amendment (Streamlining administrative processes) BILL 2022

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry, Senator the Hon. Murray Watt)

 

EXPORT CONTROL AMENDMENT (STREAMLINING ADMINISTRATIVE PROCESSES) BILL 2022

 

GENERAL OUTLINE

 

The Export Control Amendment (Streamlining Administrative Processes) Bill 2022 would amend the Export Control Act 2020 (the Act) to ensure an appropriately flexible and fit-for-purpose information-sharing framework, and to improve administrative processes and clarify the intent of a provision of the Act.

The Act sets out the overarching legislative framework for the regulation of exported goods, including food and agricultural products, from Australian territory.

 

The Bill would amend the Act to:

 

• Enable more effective sharing of information with government agencies and other bodies, while ensuring appropriate safeguards for protected information;
• Make amendments to allow the Secretary to impose or vary conditions at the same time as approving a variation to an approved arrangement, accredited property, registered establishment, or export licence; and
• Require fit and proper person assessments under the Act to take into consideration certain information received under the Primary Industries Levies and Charges Collection Act 1991 (the PILCC Act); and
• Make minor technical amendments in relation to the circumstances in which the Secretary can require an approved arrangement to be varied, suspended or revoked, to ensure the provision operates as intended.

 

The ability to use and disclose export control information appropriately is essential to assist the Department of Agriculture, Fisheries and Forestry (the Department) with the objective of maintaining Australia’s existing exports market access and to access new exports markets. The ability to use export control information for certain purposes will increase the Department’s ability to harness the full potential of export and trade information to build better market intelligence and innovate in other ways to retain Australia’s competitive edge in the international agricultural export market.

 

To achieve this objective and to support the effective administration of the Act, it is necessary to improve the operation of the information management provisions. The amendments in Schedule 1 to the Bill would provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards.

 

Schedule 2 to the Bill would also make minor amendments to the Act to streamline administrative processes in relation to variations of approved arrangements, accredited properties, registered establishments and export licences, and in relation to the consideration of certain information for the purposes of the fit and proper person test, along with other minor technical amendments.

 

The amendments in Schedule 1 to the Bill would commence on a single day to be fixed by Proclamation, or on the day after the end of the period of 6 months beginning on the day the Bill receives the Royal Assent, if not proclaimed earlier. The amendments in Schedule 2 would commence on the day after the Act receives the Royal Assent.

 

Consultation has been undertaken with Commonwealth agencies including the Attorney-General’s Department and the Office of Best Practice Regulation.

 

FINANCIAL IMPACT STATEMENT

 

The Bill would have no impact on the Australian Government Budget.

 

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 for the Bill is attached to this explanatory memorandum ( Attachment A ).

 

 

 

ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

the Constitution	Commonwealth of Australia Constitution Act
the Crimes Act	Crimes Act 1914
the Criminal Code	Criminal Code Act 1995
the Department	the Department administered by the Minister who administers the Export Control Act 2020
the Guide to Framing Commonwealth Offences	the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers published by the Attorney-General’s Department
the Minister	the Minister who will administer the Export Control Act 2020
the Privacy Act	Privacy Act 1988
the Secretary	the Secretary of the Department administered by the Minister who will administer the Export Control Act 2020
the Constitution	Commonwealth of Australia Constitution Act

EXPORT CONTROL AMENDMENT (STREAMLINING ADMINISTRATIVE PROCESSES) BILL 2022

NOTES ON AMENDMENTS

Preliminary

Section 1             Short Title

1.              Section 1 would provide for the short title of the Act to be the Export Control Amendment (Streamlining Administrative Processes) Act 2022 (the Act).

Section 2             Commencement

2.              Section 2 would provide for the commencement of each provision in the Act, as set out in the table.

3.              Item 1 in the table would provide that sections 1, 2 and 3, which concern the formal aspects of the Act, as well as anything in the Act not elsewhere covered by the table, will commence on the day on which the Act receives the Royal Assent.

4.              Item 2 in the table would provide that Schedule 1 to the Bill would commence on a day to be fixed by Proclamation, or on the day after the end of the period of 6 months beginning on the day the proposed Act receives the Royal Assent.

5.              Item 3 in the table would provide that Schedule 2 to the Bill would commence on the day after the proposed Act receives the Royal Assent.

Section 3             Schedules

6.              Section 3 would provide that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in the Schedules.

 

Schedule 1—Information management

 

Background

7.              Schedule 1 to the Bill would amend the Export Control Act 2020 (the Act) to enable more effective management of information obtained or generated under the Act. These amendments would provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards. These provisions would support the regulation of exported goods and the effective administration of the Act.

8.              The proposed amendments would introduce the concept of entrusted persons , who would include the Minister and the Secretary as well as officers of the Department. These persons would have specific authorisations in Schedule 1 to deal with relevant information in relation to the following matters:

·          Disclosure to foreign governments for the purposes of the export of goods from Australian territory or export operations, managing Australia’s international relations in respect of trade, or giving effect to Australia’s international obligations;

·          Use or disclosure for the purposes of the administration of the Export Control legislation and other Acts administered by the Minister;

·          Disclosure to a Commonwealth entity for the purposes of assisting the entity to perform its functions or duties or exercise its powers;

·          Disclosure to a court or tribunal;

·          Disclosure for the purposes of law enforcement;

·          Use or disclosure for research, policy development or data analysis to assist the Department to administer the Act or achieve one or more of the objects of the Act;

·          Use or disclosure of statistics;

·          Use or disclosure of publicly available information;

·          Disclosure to the person to whom the information relates;

·          Use or disclosure with consent given by the person to whom the information relates;

·          Disclosure to the person who provided the information.

9.              In addition, certain persons (including entrusted persons) would be authorised to use or disclose relevant information in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Act, or assisting another person to perform such functions or duties, or exercise such powers.

10.          The Secretary would have additional authorisations in relation to:

·          Disclosure to a State or Territory for the purposes of the administration of a law of a State or Territory;

·          Disclosure of relevant information where use or disclosure of such information is necessary to manage certain severe and immediate threats that arise in connection with the export of goods or export operations, or that have the potential to cause harm on a nationally significant scale.

11.          There would be a separate rule-making power for the use or disclosure of specific kinds of relevant information to specific classes of persons, for specific purposes.

12.          Each of the specific authorisations proposed by this Schedule would be an authorisation for the purposes of the Privacy Act 1988 (the Privacy Act) and other laws. It is intended that the authorisations proposed by this Schedule would not limit each other. In addition, the framework under the Data Availability and Transparency Act 2022 would remain available for the use or disclosure of information.

13.          The proposed amendments would also ensure that certain information obtained or generated under the Act, the unauthorised use or disclosure of which might cause harm, would be protected. There would be an offence provision that would apply where protected information is used or disclosed in a manner that is not required or authorised by a Commonwealth law or prescribed State or Territory law. This would promote greater public confidence that such information will be sufficiently protected by the Commonwealth.

14.          This Schedule would commence by Proclamation, or on the day after the period of 6 months beginning on the day the proposed Act receives the Royal Assent, if not proclaimed earlier. The amendments made by this Schedule would not have effect until that day.

Export Control Act 2020

Item 1                 Section 12 (definition of Commonwealth body )

15.          This item would amend section 12 of the Act to amend the definition of Commonwealth body by inserting the words “or agency” after the words “an authority”.

16.          This item ensures that the definition of Commonwealth body in the Act would align with other amendments that this Schedule would propose to make to the Act.

Item 2                 Section 12

17.          This item would amend section 12 of the Act to insert new definitions for Commonwealth entity and de-identified .

18.          A Commonwealth entity would be defined as having the same meaning as in the Public Governance, Performance and Accountability Act 2013 (PGPA Act). At the time of introduction of this Bill, Commonwealth entity was defined in the PGPA Act as a Department of State, a Parliamentary Department, a listed entity, a body corporate established by a Commonwealth law or certain body corporates prescribed to be a Commonwealth entity. This new definition would be relevant to the authorisation proposed by new section 391 below (see item 12 of this Schedule).

19.          The term de-identified , in relation to personal information, would have the same meaning as in the Privacy Act 1988 (Privacy Act). At the time of introduction of the Bill, this was defined as information that is no longer about an identifiable individual or an individual who is reasonably identifiable. This new definition would be relevant to the authorisation proposed by new section 394 below (see item 12 of this Schedule).

Item 3                 Section 12

20.          This item would amend section 12 of the Act to repeal the definitions of enforcement body and enforcement-related activity in section 12 of the Act. This is consequential to the repeal of existing section 393 of the Act (see item 12 of this Schedule).

Item 4                 Section 12

21.          This item would amend section 12 of the Act to insert a new definition for entrusted person .

22.          Entrusted person would be defined as any of the following persons:

·         The Minister;

·         The Secretary;

·         An APS employee in the Department;

·         Any other person employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with the Department;

·         Any other person who is employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth and in a class of persons specified by the rules made for the purposes of subparagraph (e)(ii) of this definition.

Item 5                 Section 12 (definition of protected information )

23.          This item would amend section 12 of the Act to repeal the existing definition of protected information and substitute a new definition of that term.

24.          Protected information would be defined to have the meaning given by new section 397F (see item 12 of this Schedule).

Item 6                 Section 12

25.          This item would amend section 12 of the Act to insert a new definition for relevant information .

26.          Relevant information would be defined as information obtained or generated by a person in the course of or for the purposes of:

·         Performing functions or duties, or exercising powers, under this Act;

·         Assisting another person to perform functions or duties, or exercise powers, under this Act.

27.          This Act is defined in section 12 to include the Act, rules and the Regulatory Powers Act as it applies to the Act. It is intended that relevant information would cover information obtained or generated in this broader context. In the interests of brevity, any references to “the Act” that are used elsewhere in this document is intended to refer to the use of the term in this broader context.

 

Item 7                 Section 12

28.          This item would amend section 12 of the Act to repeal the definitions of secondary permissible purpose and sensitive information . This is consequential to the repeal of existing sections 389 to 391 of the Act (see item 12 of this Schedule).

Item 8                 Section 12 (definition of State or Territory body )

29.          This item would amend section 12 of the Act to amend the definition of State or Territory body by inserting the words “or agency” after the words “an authority”.

30.          This term is relevant to the authorisations proposed by new sections 393 and 397C below (see item 12 of this Schedule).

Item 9                 Section 12 (definition of use )

31.          This item would amend section 12 of the Act to repeal the definition of use .

32.          The current definition of use, in relation to information, specifies that a “use” includes “making a record of”. This definition would be repealed because the ordinary meaning of “use” in relation to information includes making a record of the information. The intention is that a person who makes a record of relevant information is also using the information.

Item 10               Subsection 288(3) (after table item 26)

33.          Subsection 288(1) of the Act allows the Secretary to delegate the Secretary’s functions or powers under the Act (excluding the functions or powers referred to in the table in paragraph 288(1)(b)) to an SES employee, or an acting SES employee, in the Department. These powers are subdelegable under subsection 288(2), including to an authorised officer or an APS employee in the Department. The table in subsection 288(3) sets out the powers under the Act that are not subdelegable under subsection 288(2).

34.          This item would amend the table in subsection 288(3) to insert new item 26A. This would have the effect that the powers to use or disclose relevant information under new sections 389 to 394 (disclosure to foreign governments etc., use or disclosure for the purposes of certain Acts, disclosure to a Commonwealth entity, disclosure to a court or tribunal, disclosure for the purposes of law enforcement, use or disclosure for research, policy development or data analysis) and section 397D (use or disclosure to manage severe and immediate threats) (see item 12 of this Schedule), would not be subdelegable under subsection 288(2) of the Act. This is because, due to the nature of those powers, they should not be able to be subdelegated to an authorised officer who is not employed or engaged by the Commonwealth (for example, an authorised officer who is a state or territory officer, or a third party authorised officer).

Item 11               Subsection 359(1) (after table item 34)

35.          Subsection 359(1) of the Act sets out the provisions of the Act that are subject to an infringement notice under Part 5 of the Regulatory Powers Act. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened under an Act.

36.          This item would amend the table in subsection 359(1) to insert new item 34A. This would have the effect that the strict liability offence in new subsection 397G(6) would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. It is considered appropriate that new subsection 397G(6) be subject to an infringement notice, as it does not contain a fault element and an infringement officer could easily assess whether there has been an alleged contravention.

37.          The amount for an infringement notice under existing section 360 of the Act cannot exceed 12 penalty units for a natural person or 60 penalty units for a body corporate, which is consistent with the Guide to Framing Commonwealth Offences.

38.          There is an exception to the strict liability offence in new subsection 397G(6) if the person uses or discloses the information in good faith in the purported performance or exercise of functions, duties or powers under the Act, or in assisting another person to purportedly perform or exercise those functions, duties or powers. This ‘good faith’ element is appropriate because infringement notices would only be used for low-level contraventions where the facts of the case are clear, for example where the information has been used or disclosed for a purpose that is unrelated to the person’s export control-related work. As such, it would not be necessary to exercise significant discretion about whether the person used or disclosed the information in good faith when issuing infringement notices.

39.          It is also appropriate to apply the existing modifications of Part 5 of the Regulatory Powers Act, as set out in section 360 of the Act, to the infringement notice given in relation to new subsection 397G(6) of the Act. This is because section 360 contains modifications to ensure that the information that must be included in an infringement notice is appropriate in the context of the export control enforcement scheme. For example, the modifications require the infringement notice to state how a person has power under the Act to issue an infringement notice, to provide the recipient of the notice with a proper understanding of the authority. In addition, the amount payable under an infringement notice given in relation to new subsection 397G(6) would be 10 penalty units, or if the rules prescribe a lower number of penalty units for the purposes of paragraph 360(2)(c) of the Act, that number of penalty units. This modification to the Regulatory Powers Act allows the rules to prescribe a lower penalty unit for an infringement notice, provides a degree of flexibility in how an amount in an infringement notice can be calculated and takes into consideration the wide range of offences and circumstances.

Item 12               Part 3 of Chapter 11

40.          This item would amend the Act to repeal existing Part 3 of Chapter 11 and substitute a new Part 3 of Chapter 11.

41.          New Part 3 of Chapter 11 would set out provisions for information management under the Act, including authorised uses and disclosures of relevant information and offences and a civil penalty for the unauthorised use or disclosure of protected information.

 

Division 1 - Introduction

Section 387 - Simplified outline of this Part

42.          New section 387 would provide a simplified outline of the new Part 3 of Chapter 11 of the Act (information management). The simplified outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of new Part 3 of Chapter 11, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in new Part 3 of Chapter 11 of the Act.

43.          The first note following new section 387 would explain that each provision in new Part 3 of Chapter 11 provides an authorisation for the purposes of the Privacy Act and other laws.

44.          The second note following new section 387 would explain that nothing in Part 3 of Chapter 11 prevents the Commonwealth from making agreements or other arrangements to impose conditions on the use or disclosure of relevant information by a person or body who obtains the information as result of a disclosure authorised under new Part 3 of Chapter 11.

45.          The policy intention is that if more than one authorisation in Part 3 of Chapter 11 is available for the use or disclosure of relevant information, then a person will be able to rely upon any of those available authorisations. It is intended that the authorisations proposed by this Schedule would not limit each other.

Division 2 - Authorised uses and disclosures of relevant information

Section 388 - Use or disclosure for the purposes of this Act

46.          New subsection 388(1) would authorise the use or disclosure of relevant information by an entrusted person or person covered by subsection 388(2), in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Act, or assisting another person to perform such functions or duties or exercise such powers.

47.          New subsection 388(2) would cover the following persons:

·         A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth;

·         An authorised officer;

·         An approved auditor;

·         An approved assessor;

·         An accredited veterinarian;

·         A nominated export permit issuer;

·         An issuing officer.

48.          An entrusted person would be defined in section 12 (as amended by item 4 of this Schedule), and would include the Minister and the Secretary as well as certain officers and employees of the Department, and a Commonwealth officer prescribed in the rules.

49.          An “authorised officer” is defined in section 12 of the Act to mean, broadly, a person who is authorised under section 291 of the Act to be an authorised officer under the Act. Under section 291, the Secretary can authorise the following persons to be an authorised officer:

·         An officer or employee of a Commonwealth body;

·         An officer or employee of a State or Territory body (subject to an arrangement being in force under section 294 of the Act in relation to the officer or employee or a class of persons that includes the officer or employee;

·         A person who has applied to the Secretary to be a third party authorised officer.

50.          Under subsection 291(8) of the Act, the Secretary must not authorise a person to be an authorised officer unless satisfied that specified training and qualification requirements are met, or will be met before the person exercises functions or powers as an authorised officer. Under subsection 291(11) of the Act, the instrument of authorisation must specify the functions and powers that the person may perform or exercise as an authorised officer under the Act.

51.          The terms “approved auditor”, “approved assessor”, “accredited veterinarian”, “nominated export permit issuer” and “issuing officer” are defined in section 12 of the Act.

52.          It is appropriate that the authorisation in new section 388 allows the use or disclosure of information in the course of, or for the purposes of, performing functions or duties or exercising powers under the Act, or assisting another person to perform such functions or duties or exercise such powers. This is because the proper, effective and efficient performance of functions or duties, or the exercise of powers, under the Act will often involve the use or disclosure of relevant information. As such, this authorisation is necessary to ensure that entrusted persons, and persons identified in new subsection 388(2), who are required to use or disclose relevant information in the course of performing their functions or duties, or exercising their powers, under the Act (or in assisting another person with such functions, duties or powers), can do so without contravening the proposed civil penalty and offence provisions in new section 397G (inserted by this item) or being subject to other statutory or common law restrictions that would prevent them from performing their roles or carrying out their responsibilities effectively.

53.          It is also intended that the reference in new subsection 388(1) to assisting another person to perform functions or duties, or exercise powers, under the Act would take its ordinary meaning. It is not intended to be linked to the separate definition of “person assisting” which is defined in section 366 of the Act.

Section 389 - Disclosure to foreign governments etc. for export, trade and other purposes

54.          New section 389 would authorise the disclosure of relevant information by an entrusted person to a foreign government, an authority or agency of a foreign government or an international body of an intergovernmental character, for the purposes of the export of goods from Australian territory or export operations, managing Australia’s international relations in respect of trade, or giving effect to Australia’s international obligations.

55.          “Export operations” is defined in sections 12 and 16 of the Act, collectively, to mean a range of activities relating to operations to export goods, including the production or preparation of goods for export.

56.          The authorisation in new section 389 is intended to allow for the disclosure of relevant information to foreign governments for the purposes of the export of goods from Australia or managing Australia’s international relations in respect of trade. In addition, Australia’s international obligations may also require the reporting of certain information to foreign countries or international bodies of an intergovernmental character (such as the Conference of the Parties, working group for a Convention or the World Trade Organization) in relation to trade and export.

57.          As a result of subsection 288(1) of the Act, the authorisation in new section 389 would not be subdelegable to an authorised officer or APS employee in the Department (see item 10 of this Schedule). This is because an APS employee in the Department will already be able to rely upon the authorisation in new section 389 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary. Further, it would not be considered appropriate for an authorised officer who is not employed or engaged by the Commonwealth to disclose relevant information to a foreign government, an authority or agency of a foreign government or an international body of an intergovernmental character.

Section 390 - Use or disclosure for the purposes of certain Acts

58.          New section 390 would authorise the use or disclosure of relevant information by an entrusted person for the purposes of the administration of the Act or another Act that is administered by the Minister. For example, an entrusted person would be able to use or disclose relevant information for the purposes of administering the Biosecurity Act 2015 , being another Act that is currently administered by the Minister.

59.          New section 390 would help ensure effective and efficient administration of other relevant legislation in the Minister’s portfolio. The authorisation in new section 390 would be restricted to entrusted persons, as it is not considered appropriate for persons who are not employed or engaged by the Commonwealth or a body corporate established by a law of the Commonwealth to be able to use or disclose relevant information for such purposes.

60.          As a result of subsection 288(1) of the Act, the authorisation in new section 390 would not be subdelegable to an authorised officer or APS employee in the Department (see item 10 of this Schedule). This is because an APS employee in the Department will already be able to rely upon the authorisation in new section 390 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary. Further, it would not be considered appropriate for an authorised officer who is not employed or engaged by the Commonwealth to use or disclose relevant information for the purposes of the administration of the Act or other Acts administered by the Minister.

 

Section 391 - Disclosure to a Commonwealth entity

61.          New section 391 would authorise the disclosure of relevant information by an entrusted person to a Commonwealth entity if the disclosure is for the purposes of assisting the entity to perform its functions or duties or exercise its powers.

62.          A Commonwealth entity would be defined in section 12 of the Act as having the same meaning as in the PGPA Act (see amendments proposed by item 2 of this Schedule). At the time of introduction of this Bill, Commonwealth entity was defined in the PGPA Act as a Department of State, a Parliamentary Department, a listed entity, a body corporate established by a Commonwealth law or certain body corporates prescribed to be a Commonwealth entity.

63.          For example, as the Department of Foreign Affairs and Trade (DFAT) is a Commonwealth entity, new section 391 would allow an entrusted person to disclose relevant information to DFAT if the disclosure of the particular information would assist in the performance of functions or duties or the exercise of powers under that portfolio.

64.          As a result of subsection 288(1) of the Act, the authorisation in new section 391 would not be subdelegable to an authorised officer or APS employee in the Department (see item 10 of this Schedule). This is because an APS employee in the Department will already be able to rely upon the authorisation in new section 391 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary. Further, it would not be considered appropriate for an authorised officer who is not employed or engaged by the Commonwealth to disclose relevant information to a Commonwealth entity.

Section 392 - Disclosure to a court, tribunal etc.

65.          New subsection 392(1) would authorise the disclosure of relevant information by an entrusted person to a court exercising federal jurisdiction.

66.          New subsection 392(2) would authorise the disclosure of relevant information by an entrusted person to a court or a tribunal, authority or person that has the power to require the answering of questions or the production of documents, in certain circumstances. Such circumstances would be where the disclosure is for the purposes of the enforcement of a law of the Commonwealth or to assist the court, tribunal, authority or person to make or review an administrative decision that is required or authorised to be made under a law of the Commonwealth.

67.          This provision is not intended to impose a standalone obligation on an entrusted person to disclose relevant information to a court, or to a tribunal, authority or another person. Rather, the intention of new section 392 is to ensure that if an entrusted person is required to provide relevant information to a court, or to a tribunal, authority or person with the power to require such information, then the entrusted person would not be contravening a civil penalty or committing an offence under new section 397G in doing so.

68.          As a result of subsection 288(1) of the Act, the authorisation in new section 392 would not be subdelegable to an authorised officer or APS employee in the Department (see item 10 of this Schedule). This is because an APS employee in the Department will already be able to rely upon the authorisation in new section 392 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary. Further, it would not be considered appropriate for an authorised officer who is not employed or engaged by the Commonwealth to disclose relevant information to a court or tribunal.

Section 393 - Disclosure for the purposes of law enforcement

69.          New subsection 393(1) would authorise the disclosure of relevant information by an entrusted person to a body mentioned in new subsection 393(2) in certain circumstances. A body mentioned in new subsection 393(2) would be a Commonwealth entity, a State or Territory body, the Australian Federal Police or the police force or police service of a State or Territory.

70.          The circumstances in which new subsection 393(1) would authorise the disclosure of relevant information would be where:

·          The entrusted person reasonably believes the disclosure is necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty (such as a civil penalty provision), or for the protection of the public revenue; and

·          The functions of the relevant body include that enforcement or protection; and

·          For a State or Territory body, or the police force or police service of a State or Territory - the relevant body has undertaken not to use or further disclose the information except in accordance with a relevant agreement that is in force between the Commonwealth and the State or Territory, and the agreement applies in relation to the information; and

·          For a State or Territory body, or the police force or police service of a State or Territory - the entrusted person is satisfied that the information will only be used or further disclosed in accordance with the agreement.

71.          It is appropriate that relevant information be able to be disclosed to such law enforcement bodies in these circumstances. This is because the authorisation in new section 393 involves a matter of public interest, being the enforcement of Australian laws. A State or Territory body would be defined in section 12 of the Act as a Department of State, or an agency or authority of a State or Territory (see amendments proposed by item 8 of this Schedule).

72.          As a result of subsection 288(1) of the Act, the authorisation in new section 393 would not be subdelegable to an authorised officer or APS employee in the Department (see item 10 of this Schedule). This is because an APS employee in the Department will already be able to rely upon the authorisation in new section 393 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary. Further, it would not be considered appropriate for an authorised officer who is not employed or engaged by the Commonwealth to disclose relevant information for the purposes of law enforcement.

Section 394 - Use or disclosure for research, policy development or data analysis

73.          New subsection 394(1) would authorise an entrusted person to use relevant information, disclose relevant information to an entrusted person, or disclose relevant information to another person or body for certain purposes. Such purposes would be for the person or body to undertake research, policy development or data analysis to assist the Department with the administration of the Act or to assist the Department to achieve one or more of the objects of the Act set out in section 3 of the Act.

74.          The objects set out in section 3 of the Act are, broadly:

·          To ensure that goods that are exported meet relevant importing country requirements, comply with government or industry standards or requirements, and are traceable;

·          To ensure the integrity of the 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.

75.          This authorisation would allow an entrusted person (such as the Secretary) to engage a person or body to undertake research, policy development or data analysis to assist the Department in administering the Act or achieve the objects of the Act. It would also allow another entrusted person (such as an APS employee in the Department) to contribute to such research, policy development or data analysis.

76.          However, new subsection 394(2) would provide that an entrusted person would not be authorised to disclose relevant information under new paragraph 394(1)(c) to another person (who is not employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth) or body (that is not a Commonwealth entity) unless:

·          The other person or body has undertaken not to use or further disclose the information except in accordance with an agreement that is in force between the Commonwealth and that person or body, and that agreement applies to the information; and

·          The entrusted person is satisfied that the information will be used or further disclosed only in accordance with the agreement.

77.          New subsection 394(3) would further provide that an entrusted person is not authorised to disclose relevant information under new paragraph 394(1)(c) unless the entrusted person is satisfied that:

·          In the case of research, policy development or data analysis that could not proceed if personal information were de-identified before the relevant information is disclosed—only the minimum amount of personal information necessary to proceed is disclosed; or

·          Otherwise—all reasonable steps have been taken to de-identify any personal information before the relevant information is disclosed.

78.          The restrictions in new subsections 394(2) and (3) would assist in ensuring that appropriate protections are in place for relevant information that is disclosed to another person or body under new paragraph 394(1)(c), so as to reduce the risk that it is misused.

79.          “Personal information” is defined in section 12 of the Act to have the same meaning as in the Privacy Act. The term is defined in section 6 of the Privacy Act to mean 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.

80.          “De-identified” is defined in section 12, as amended by item 2 of this Schedule, to have the same meaning as in the Privacy Act. Under section 6 of the Privacy Act, information is “de-identified” if the information is no longer about an identifiable individual or an individual who is reasonably identifiable.

81.          As a result of subsection 288(1) of the Act, the authorisation in new section 394 would not be subdelegable to an authorised officer or APS employee in the Department (see item 10 of this Schedule). This is because an APS employee in the Department will already be able to rely upon the authorisation in new section 394 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary. Further, it would not be considered appropriate for an authorised officer who is not employed or engaged by the Commonwealth to use or disclose relevant information for the purposes of research, policy development or data analysis.

Section 395 - Use or disclosure of statistics

82.          New section 395 would authorise the use or disclosure of relevant information by an entrusted person if the information is statistics that are not likely to enable the identification of a person.

83.          This authorisation recognises that the disclosure of statistics that contain no identifying information are unlikely to cause harm to any person.

Section 396 - Use or disclosure of publicly available information

84.          New section 396 would authorise the use or disclosure of relevant information by an entrusted person if the information has already been lawfully made available to the public.

85.          This authorisation recognises that there is no justifiable reason to prevent the disclosure of information that is lawfully publicly available and therefore already accessible.

Section 397 - Disclosure to person to whom information relates

86.          New section 397 would authorise the disclosure of relevant information by an entrusted person to the person to whom the information relates.

87.          This authorisation recognises that the interests of the person to whom relevant information relates may benefit from, and will not be adversely affected by, disclosure of the information to themselves.

Section 397A - Use or disclosure with consent

88.          New section 397A would authorise the use or disclosure of relevant information by an entrusted person if the person to whom the information relates has consented to the use or disclosure, and where the use or disclosure is in accordance with the consent provided.

89.          This would authorise the use or disclosure of relevant information by an entrusted person if the person to whom the information relates has consented to the use or disclosure, and where the use or disclosure is in accordance with the consent provided.

90.          This authorisation recognises that there is no justifiable reason to prevent the use or disclosure of information where the person concerned consents to the use or disclosure. It is intended that consent would include express consent or implied consent, consistent with the Privacy Act.

Section 397B - Disclosure to person who provided information

91.          New section 397B would authorise the disclosure of relevant information by an entrusted person to the person who provided the information.

92.          This authorisation recognises that there is no justifiable reason to prevent the disclosure of information to the person who provided it in the first place, as that person will have already seen the information.

Section 397C - Disclosure to State or Territory body

93.          New section 397C would authorise the disclosure of relevant information by the Secretary to a State or Territory body if:

·          The Secretary reasonably believes the disclosure is necessary for the purposes of the administration of a State or Territory law; and

·          The relevant State or Territory body has given an undertaking not to use or further disclose that information except in accordance with a relevant agreement that is in force between the Commonwealth and the State or Territory, and the agreement applies in relation to the information; and

·          The Secretary is satisfied that the information will only be used or further disclosed in accordance with the agreement.

94.          The purpose of the authorisation in new section 397C is to enable relevant information to be disclosed to a State or Territory body where it is necessary to do so for the purposes of administering State or Territory laws. A State or Territory body would be defined in section 12 of the Act as a Department of State, or an agency or authority of a State or Territory (see amendments proposed by item 8 of this Schedule). As this authorisation would relate to the broader purposes of administering State or Territory laws, which may not necessarily be limited to export control purposes, it is necessary for an agreement to be in place between the Commonwealth and the relevant State or Territory body to ensure the terms of the information sharing arrangement are clear, including the purposes for which the information may be used or further disclosed.

95.          As a result of subsection 288(1) of the Act, the authorisation in new section 397C is delegable by the Secretary to an SES employee, or an acting SES employee, in the Department. Under subsection 288(2) of the Act, such an authorisation would also be subdelegable by the SES employee, or an acting SES employee to an authorised officer or APS employee in the Department.

Section 397D - Use or disclosure to manage severe and immediate threats

96.          New section 397D would authorise the use or disclosure of relevant information by the Secretary, if the Secretary reasonably believes that using or disclosing the information is necessary to manage a severe and immediate threat to human health, animal or plant health, or the environment, where the threat arises in connection with the export of goods from Australian territory or export operations, or the threat has the potential to cause harm on a nationally significant scale.

97.          “Export operations” is defined in sections 12 and 16 of the Act, collectively, to mean a range of activities relating to operations to export goods, including the production or preparation of goods for export.

98.          The purpose of the authorisation in new section 397D is to allow relevant information to be used or disclosed by the Secretary where it is necessary to manage a severe and immediate threat that is related to exports or has the potential to cause harm on a nationally significant scale. It is appropriate for this authorisation to be in place as such severe and immediate threats require a rapid response, the management of which would likely require the use or disclosure of relevant information.

99.          As a result of subsection 288(1) of the Act, the authorisation in new section 397D is delegable by the Secretary to an SES employee, or an acting SES employee, in the Department. However, such an authorisation would not be subdelegable by the SES employee, or an acting SES employee, to an authorised officer or APS employee in the Department (see item 10 of this Schedule).

Section 397E - Use or disclosure authorised by rules

100.      New subsection 397E(1) would authorise the use of relevant information by a person if:

·          That person is included in a class of persons prescribed by rules made for the purposes of new paragraph 397E(1)(a); and

·          The use is for a purpose prescribed by rules made for the purposes of new paragraph 397E(1)(b); and

·          The information is of a kind prescribed by rules made for the purposes of new paragraph 397E(1)(c); and

·          The use complies with any conditions, prescribed by rules made for the purposes of new paragraph 397E(1)(d).

101.      New subsection 397E(2) would authorise the disclosure, including by publication, of relevant information by a person if:

·          That person is included in a class of persons prescribed by rules made for the purposes of new paragraph 397E(2)(a); and

·          The disclosure is for a purpose prescribed by rules made for the purposes of new paragraph 397E(2)(b); and

·          The information is of a kind prescribed by rules made for the purposes of new paragraph 397E(2)(c); and

·          The disclosure complies with any conditions, prescribed by rules made for the purposes of new paragraph 397E(2)(d).

102.      New subsection 397E(3) would provide that the rules made for the purposes of new section 397E must specify the legislative power or powers of the Parliament in respect of which the rules are made. This will ensure that any new authorisations for the use or disclosure of relevant information will draw upon the necessary constitutional heads of power.

103.      New subsection 397E(4) would provide that new Division 2 of Part 3 of Chapter 11 of the Act does not limit rules that may be made for the purposes of new section 397E. The intention is that the rules under new section 397E may, for example, prescribe the use or disclosure of relevant information for a purpose that is the same as another authorisation in Division 2, but in relation to a different class of persons. Another situation would be where the rules under new section 397E may prescribe additional authorisations for a class of persons that are otherwise identified in Division 2.

104.      The authorisation in new section 397E is necessary to allow the rules to prescribe the use or disclosure of relevant information in other circumstances which may arise in the future, and which may require expedient authorisation to effectively manage export control risks or other risks. For example, a situation may arise in the future where a new partnership is formed between the Commonwealth, industry bodies and local community groups to assess the impacts of climate change, and relevant information about certain export preparation operations is required to assess those impacts, but no other authorisation for the use or disclosure of that information under the Act is available or considered to be appropriate. In such a case, it may be considered necessary to prescribe rules under new section 397E to allow for the use or disclosure of relevant information by the partnership in certain circumstances.

105.      The rule-making power in new section 397E is also needed because there are classes of person who have functions and powers under the various export control rules that are made under the Act, but who are not mentioned in the Act. New section 397E will allow the rules to specifically prescribe certain types of relevant information (rather than all relevant information), as well as the conditions under which the prescribed information is disclosed, in relation to the specific functions and powers that such classes of person have under the rules.

106.      The rules under new section 397E would be able to be tailored to particular circumstances, by prescribing the kinds of information that may be used or disclosed, the classes of persons who may use or disclose the information, and the purposes for which the information could be used or disclosed. In addition, the rules would be able to impose appropriate limitations on the use or disclosure of the information, by requiring certain conditions to be complied with. For example, this may include requiring the person who is using or disclosing the information to ensure the confidentiality of the information or to abide by certain agreements between the Commonwealth and the person in relation to the information.

107.      New section 397E would also replace existing subsection 390(1) of the Act, which allows the Secretary to provide additional authorisations for the use or disclosure of certain information on an ad hoc basis. Under the new information management framework proposed by this Schedule, it is considered more appropriate for rules to prescribe any additional authorisations under new section 397E, instead of the Secretary providing ad hoc authorisations. This would allow greater transparency and parliamentary oversight of any rules made under new section 397E, noting that they would also be subject to the usual disallowance process outlined in the Legislation Act 2003 .

Division 3 - Protected information

Section 397F - Meaning of protected information

108.      Protected information would be defined in section 12 of the Act (see amendments proposed by item 5 of this Schedule) to have the meaning given by section 397F.

109.      New subsection 397F(1) would provide that protected information means information of any of the following kinds obtained or generated by a person:

·          Information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;

·          Information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences;

·          Information the disclosure of which could reasonably be expected to prejudice the security, defence or international relations of Australia;

·          Information of a kind prescribed by the rules made for the purposes of paragraph 397F(1)(d) of the Act.

110.      The notes at proposed new subsection 397F(1) would explain that rules are made by the Secretary under section 432 of the Act. They are a disallowable legislative instrument and are subject to sunsetting under the Legislation Act 2003 . Under subsection 289(1) of the Act, the Minister may, by legislative instrument, 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 section 432 of the Act.

111.      The term protected information is used in the civil penalty and offence provisions in new section 397G (see item 12 of this Schedule). New section 397G applies where certain persons have obtained or generated information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the Act, or assisting another person to perform such functions or duties or exercise such powers. Such information would reflect the definition of relevant information (as inserted by item 6 of this Schedule). However, such information must also be protected information , and the use or disclosure of that information must be unauthorised in order for the civil penalty and offence provisions in new section 397G to be enlivened.

112.      This definition of protected information is intended to cover the kinds of information of which an unauthorised use or disclosure would be likely to cause harm. This includes information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence.

113.      It is necessary to allow the rules to be able to prescribe additional kinds of protected information, in order to be able to quickly adapt to changing circumstances, technology and, potentially Australia’s international obligations, in the future. However, any additional kinds of protected information to be prescribed by the rules would need to meet the requirements set out in new subsection 397F(2) of the Act.

114.      New subsection 397F(2) would have the effect that the Secretary must firstly be satisfied that the disclosure of a kind of information would or could reasonably be expected to prejudice the effective working of the Department, or otherwise harm the public interest, before such rules could be made to prescribe that kind of information as protected information.

Section 397G - Offence and civil penalty—use or disclosure of protected information

115.      New section 397G would deal with the use or disclosure of protected information, and would provide a fault-based offence, strict liability offence and a civil penalty provision for the unauthorised use or disclosure of protected information.

116.      A person who is, or has been, an entrusted person or a person covered under new subsection 397G(2) would contravene new subsection 397G(1) in certain circumstances. This would be where:

·          The person has obtained or generated information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the Act, or assisting another person to perform such functions or duties, or exercise such powers. Such information would reflect the definition of relevant information (as inserted by item 6 of this Schedule); and

·          The information is also protected information (see new section 397F above); and

·          The person uses or discloses the information.

117.      It is considered appropriate that the use or disclosure of protected information be strictly regulated, given that the unauthorised use or disclosure of such information (including, for example, certain kinds of commercial-in-confidence information) could reasonably be expected to cause harm.

118.      It is also intended that the reference in new subsection 397G(1) to assisting another person to perform functions or duties, or exercise powers, under the Act would take its ordinary meaning. It is not intended to be linked to the separate definition of person assisting which is defined in section 366 of the Act.

119.      The note following new subsection 397G(1) would explain that the physical elements of offences against new subsections 397G(5) and (6) are set out in new subsection 397G(1). The note would also direct the reader to section 370 of the Act, relating to the physical elements of offences.

120.      New subsection 397G(2) would cover the following persons:

·          A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth;

·          An authorised officer;

·          An approved auditor;

·          An approved assessor;

·          An accredited veterinarian;

·          A nominated export permit issuer.

121.      New subsection 397G(3) would provide an exception to new subsection 397G(1) where the use or disclosure is required or authorised by the Act, another law of the Commonwealth or a law of a State or Territory prescribed by the rules. This would ensure that authorised uses and disclosures, including an authorisation under Part 3 of Chapter 11 of the Act as amended by this item, are not subject to the civil penalty and offence provisions.

122.      The note following new subsection 397G(3) would explain that the defendant bears an evidential burden of proof in relation to the matters in new subsection 397G(3), that is, whether the use or disclosure of information was required or authorised by a Commonwealth law or a prescribed State or Territory law. The note would also refer the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act. The reversal of the burden of proof is justified in this instance as the matter to be proved (that is, that the use or disclosure of protected information was required or authorised by a Commonwealth law or a prescribed State or Territory law) is a matter that would be peculiarly in the knowledge of the defendant. Further, there would be a number of authorised uses and disclosures set out in new Division 2 of Part 3 of Chapter 11 of the Act (as inserted by this item), across the laws of the Commonwealth, and where relevant, across the laws of a State or Territory. In the event of criminal or civil proceedings, it would be significantly more difficult and costly for the prosecution to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. Consequently, in order to effectively protect information under new section 397G, it is reasonable, necessary and proportionate to reverse the evidential burden of proof in this limited situation.

123.      New subsection 397G(4) would provide an exception to new subsection 397G(1) where the person uses or discloses the protected information in good faith in the purported performance of functions or duties, or the purported exercise of powers, under the Act, or in assisting another person in the purported performance of such functions or duties or the purported exercise of such powers.

124.      The exception in new subsection 397G(4) is intended to cover a situation where a person uses or discloses information in the belief that they were authorised to do so under a provision of the Act. The term ‘in good faith’ is intended to mean without malice, or without an intention to engage in fraudulent behaviour or improper conduct.

125.      The note following new subsection 397G(4) would explain that the defendant bears an evidential burden of proof in relation to whether the use or disclosure of information was covered by the exception in new subsection 397G(4) of the Act. The note would also refer the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act. The reversal of the burden of proof is justified in this instance as the matter to be proved (that is, that the use or disclosure of protected information was made in good faith in the purported performance of functions or duties, or the purported exercise of powers, under the Act, or in assisting another person in the purported performance of such functions or duties or the purported exercise of such powers) is a matter that would be peculiarly in the knowledge of the defendant. In the event of criminal or civil proceedings, it would be significantly more difficult and costly for the prosecution to prove that the defendant did not use or disclose the information in good faith in such purported circumstances than it would be for a defendant to establish, on the balance of probabilities, that they did so. Consequently, in order to effectively protect information under new section 397G, it is reasonable, necessary and proportionate to reverse the evidential burden of proof in this limited situation.

126.      New subsection 397G(5) would have the effect that a person who contravenes new subsection 397G(1), in circumstances where the exceptions in new subsections 397G(3) and (4) do not apply, would be committing a fault-based offence. The maximum penalty for the fault-based offence would be 2 years imprisonment or 120 penalty units, or both.

127.      The proposed maximum penalty is consistent with the standard fine to imprisonment ratio in the Guide to Framing Commonwealth Offences. This maximum penalty has been set at a level that recognises the significant harm that can occur as a result of unauthorised uses or disclosure of protected information. For the regulatory regime under the Act to be effective, there must be confidence from industry and the general public, that protected information obtained and generated under the Act, will be handled appropriately. The maximum penalty of 2 years imprisonment or 120 penalty units, or both, would also be consistent with a large number of other penalties under the Act.

128.      In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non-compliance. The criminal penalty in new subsection 397G(5) is intended to reinforce the retributive effect of the current penalty regime while allowing a court greater capacity to respond meaningfully and proportionately to particularly egregious offending which falls on the higher end of objective seriousness. A court would still have the discretion to impose a lesser penalty for offending which falls on the lower end of objective seriousness.

129.      New subsection 397G(6) would have the effect that a person who contravenes new subsection 397G(1), in circumstances where the exceptions in new subsections 397G(3) and (4) do not apply, would be committing an offence of strict liability. The maximum penalty for the strict liability offence would be 50 penalty units.

130.      Strict liability is proposed for this offence having regard to the principles outlined in the Guide to Framing Commonwealth Offences. Consistent with the Guide, strict liability is appropriate in these circumstances as:

·          The offence in new subsection 397G(6) is not punishable by imprisonment;

·          The offence in new subsection 397G(6) is subject to a maximum penalty of 50 penalty units for an individual;

·          The actions which trigger the offence in new subsection 397G(6) are simple, readily understood and easily defended. The offence is triggered if certain persons who obtained or generated protected information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the Act (or assisting another person to perform such functions or duties, or exercise such powers), uses or discloses protected information, and the use or disclosure is not required or authorised by a Commonwealth law or a prescribed State or Territory law (and where the good faith exception in new subsection 397G(4) does not apply);

·          Offences relating to the unauthorised use or disclosure of protected information need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime, and to reduce the risk of the potentially damaging consequences of unauthorised use or disclosure of protected information;

·          The offence in new subsection 397G(6) would be subject to an infringement notice (see new table item 34A in subsection 359(1), as proposed by item 11 of this Schedule);

·          The absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently used or disclosed protected information without a relevant authorisation is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

·          The use of protected information plays an important role in ensuring that the Act remains an effective and efficient mechanism to both maintain Australia’s reputation in the exports market and to implement Australia’s obligations under the relevant international treaties. If protected information is used or disclosed without authorisation it may deter other persons from providing such information to the Commonwealth in the future;

·          The persons affected by the offence would be entrusted persons, other persons who are employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth, or other persons who perform certain functions or duties, or exercise certain powers, under the Act. By virtue of their roles and responsibilities, these persons would have been placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

131.      The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code). For the above reasons, it is appropriate for strict liability to be imposed for the offence under new subsection 397G(6) of the Act.

132.      New subsection 397G(7) would have the effect of establishing a corresponding civil penalty provision. A person would be liable to a civil penalty if they contravene new subsection 397G(1), in circumstances where the exceptions in new subsections 397G(3) and (4) do not apply. The maximum civil penalty would be 240 penalty units.

133.      The proposed maximum civil penalty is intended to deter unauthorised uses or disclosures of protected information, and to be proportionate to the likely harm that may result. In particular, the unauthorised use or disclosure of protected information can undermine confidence in the integrity of the export control regime, posing threats to Australia’s trading reputation, exporter’s operations, and international relations. The maximum civil penalty of 240 penalty units would also be consistent with a large number of other penalties under the Act.

134.      The proposed combination of a fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent for persons who use or disclose protected information without authorisation, which has the potential to cause harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce any contravention of new subsection 397G(1) appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected that criminal proceedings would be brought for conduct that contravenes new subsection 397G(1) that is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

135.      It is not intended that persons would be punished twice for contravention of new subsection 397G(1). This is because under section 88 of the Regulatory Powers Act, a court may not make a civil penalty order against a person for a contravention of a civil penalty provision if that person has been convicted of an offence under an Australian law that is constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

Item 13               Application, saving and transitional provisions

136.      This item would provide the application provisions for the amendments in Schedule 1 to the Bill.

137.      Subitem 13(1) would provide that the amendments to the Act made by this Schedule would apply in relation to the use or disclosure of relevant information on or after the commencement of this item, whether the relevant information is obtained or generated before, on or after that commencement. This makes clear that the amendments in this Schedule, which relate to the use or disclosure of relevant information, have prospective application.

138.      Subitem 13(2) would provide that, to avoid doubt, for information that is obtained or generated before commencement and is “protected information” within the meaning of the Act as in force immediately before commencement:

·          The Act as amended by this Schedule applies in relation to such information as if it were “relevant information” (as defined in section 12 amended by item 6 of this Schedule); and

·          A person may satisfy new paragraph 397G(1)(b) of the Act, as inserted by this Schedule, in respect of such information; and

·          Nothing in subitem 13(2) prevents such information from also being “protected information” within the meaning of section 397F as inserted by this Schedule (see item 12 of this Schedule).

139.      Among other things, subitem 13(2) would ensure that certain information obtained under or for the purposes of the Export Control Act 1982 that was previously taken to be “protected information” for the purposes of the Act pursuant to item 79 of Schedule 3 to the Export Control (Consequential Amendments and Transitional Provisions) Act 2020 , would be treated as “relevant information” after commencement.

140.      Subitem 13(3) would provide that, despite the amendments to the Act made by this Schedule, existing sections 388 to 397 of the Act, as in force immediately before the commencement, would continue to apply on and after commencement in relation to the making of a record, disclosure or use of protected information before commencement. This makes clear that existing sections 388 to 397 (including the existing offence provision in section 397) would continue to apply in relation to protected information that was recorded, disclosed or used before the commencement of this item. Sections 388 to 397 would be repealed by item 12 of this Schedule.

 

Schedule 2—Other Amendments

Export Control Act 2020

Part 1 — Amendments

Accredited properties

 

141.      Chapter 3 of the Act allows the Secretary, on application by the manager of a property, to accredit the property for a kind of export operations in relation to a kind of prescribed goods. The accreditation of a property is subject to certain conditions. The matters covered by the accreditation of a property or the conditions of the accreditation may be varied.

 

142.      Under section 80 of the Act, when accrediting a property, the Secretary has the power to impose any additional conditions, in addition to the conditions provided by the Act or prescribed by the rules, that the Secretary considers appropriate and that are specified in the notice of decision of the accreditation. The Secretary can also decide that one or more conditions prescribed by the rules are not to be conditions of the accreditation.

 

143.      Under subsection 87(1) of the Act, the manager of an accredited property may apply to the Secretary to vary the accreditation in relation to certain matters, to approve a variation of the accreditation so that it covers certain matters, to vary the conditions of the accreditation, to vary the particulars relating to the accreditation to make a minor change to a matter, or to vary any other aspect of the accreditation. If the Secretary receives such an application, the Secretary must decide under subsection 87(2) to either make the variation or give an approval, or refuse to make the variation or give the approval.

 

144.      Currently, the Secretary does not have the power to impose additional conditions or vary the conditions of the accredited property as part of the process of approving a variation, as they could when first accrediting a property under section 79 of the Act (with the ability to decide conditions under section 80 of the Act) or renewing the accreditation of a property under section 84 of the Act (with the ability to decide conditions under section 85 of the Act).

 

145.      There may circumstances where a proposed variation of an accreditation will only meet the requirements under the Act or the rules if the Secretary requires the existing conditions of the accreditation to be varied or additional conditions imposed. Providing the Secretary with the proposed new power will mean that the Secretary can make the variation, or give the approval, subject to the required additional conditions or variations of conditions, in circumstances where the Secretary otherwise may need to refuse to make the variation or give the approval.

 

146.      The Secretary already has the power under section 90 of the Act to vary the conditions of an accreditation in certain circumstances. The new power to vary the conditions of an accreditation at the time of approving a requested variation will include the same restrictions and procedural fairness requirements as currently specified under section 90 of the Act, but will streamline administrative processes to allow the Secretary to require relevant additional changes at the same time as the variation.

 

Item 1        After paragraph 87(2)(a)

 

147.      This item would insert new paragraph 87(2)(ab), which would give the Secretary the power when considering an application under subsection 87(1) to make the variation of the accreditation of the property, or give the approval of the variation, with additional conditions or variations of conditions.

 

148.      The purpose of the proposed amendment is to provide the Secretary with the ability to require the conditions of the accreditation to be varied, at the time of considering an application under subsection 87(1), including by varying any existing conditions of the accreditation, or by imposing any additional conditions that the Secretary considers appropriate.

 

149.      There are restrictions imposed on the Secretary’s ability to require the conditions of the accreditation to be varied that are set out below at item 5, including the grounds that must be met in order to require the conditions of the accreditation to be varied or added, and procedural fairness requirements.

 

Item 2        Subsection 87(2) (note 3)

 

150.      This item would amend note 3 at subsection 87(2) by omitting the words “to refuse the application” and substituting the words “to approve the application with additional conditions or variations of conditions, or to refuse the application,”.

 

151.      Note 3 as amended would explain that a decision to approve the application with additional conditions or variations of conditions, or to refuse the application, is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382 of the Act).

 

152.      Part 2 of Chapter 11 relates to the review of decisions and section 382 imposes requirements on the decision-maker to given written notice of the terms of a decision, reasons for decision, and information about the person’s right to merits review.

 

153.      This proposed amendment would be consequential to proposed item 32 of this Schedule, which provides that a decision under new paragraph 87(2)(ab) to make a variation or give an approval with additional conditions or variations of conditions in relation to the accreditation of a property is a reviewable decision.

 

Item 3        Subsection 87(3)

 

154.      This item would amend subsection 87(3) by omitting the words “ the variation, or give the approval,” and substituting the words “a decision under paragraph (2)(a) or, subject to subsections (4) and (5), paragraph (2)(ab),”.

 

155.      Subsection 87(3) currently provides for grounds on which the Secretary may make or approve the requested variation in relation to the accreditation of the property. The effect of the amendment would be to refer also to a decision under proposed new paragraph 87(2)(ab) to make or approve a variation subject to additional or varied conditions, and to make clear that such a decision would be subject to proposed new subsections 87(4) and (5) which provide the grounds for requiring the conditions to be added or varied and set out procedural fairness requirements.

 

156.      This proposed amendment would be consequential to the insertion of new paragraph 87(2)(ab), proposed by item 1 of this Schedule.

 

Item 4        Subsection 87(3)

 

157.      This item would amend subsection 87(3) by omitting the words “the variation were made or the approval were given”, and substituting the words “the decision is made”.

 

158.      Subsection 87(3) currently provides for grounds on which the Secretary may make or approve the requested variation in relation to the accreditation of the property. The proposed amendment replaces the specific reference to the decision to make or approve a requested variation, with a reference to a “decision” which would also encompass the new decision to make or approve the requested variation subject to additional or varied conditions.

 

159.      This proposed amendment would be consequential to the insertion of new paragraph 87(2)(ab), proposed by item 1 of this Schedule.

 

Item 5        At the end of section 87

 

160.      This item would amend section 87 by inserting a new subheading at the end of section 87 titled “Making variation or giving approval with additional conditions or variations of conditions”. This item would also insert new subsections 87(4), 87(5) and 87(6).

 

161.      New subsection 87(4) would provide that the Secretary may make the variation, or give the approval, with additional conditions or variations of conditions under proposed new paragraph 87(2)(ab) only if the Secretary reasonably believes that the additional conditions or variations of conditions are necessary:

 

 

162.      Paragraph 79(2)(b) allows the rules to prescribe other requirements (in addition those set out in paragraph 79(2)(a) of the Act) that must be met for the Secretary to accredit a property for a kind of export operations.

 

163.      The purpose of this amendment is to limit the circumstances in which the Secretary can impose additional conditions or vary the conditions of an accreditation when considering an application by the manager of an accredited property under subsection 87(1) to vary the accreditation, to approve a variation of the accreditation, to vary the conditions of the accreditation, to vary the particulars relating to the accreditation, or to vary any other aspect of the accreditation. The circumstances listed in proposed new subsection 87(4) are modelled on the relevant circumstances in existing subsection 90(2), which apply to the exercise of the Secretary’s power under subsection 90(1) of the Act to make a variation to the accreditation of a property.

 

164.      New subsection 87(5) would provide that the Secretary must not make a decision under proposed new paragraph 87(2)(ab) unless the Secretary has given a written notice to the manager of the accredited property in accordance with proposed subsection 87(6) of the Act. The purpose of this amendment is to ensure the manager of a property is provided with an opportunity to respond to a notice of the variation or approval where the Secretary makes the variation, or gives an approval, with additional conditions or variation of conditions in relation to the accreditation of a property.

 

165.      New subsection 87(6) would provide the requirements for a notice given under proposed subsection 87(5). It provides that the written notice must:

 

 

166.      The requirements for the notice are modelled on those in existing subsection 90(4) of the Act, which outlines the notice requirements where the Secretary proposes to make a variation in relation to the accreditation of a property under subsection 90(1) of the Act.

Item 6        Before subsection 88(1)

 

167.      This item would insert a new subheading titled “Variation or approval” before subsection 88(1) of the Act. The proposed subheading is intended to assist readers in their understanding of section 88 as proposed to be amended and to improve readability.

 

168.      This proposed amendment would be consequential to the further amendments to section 88 of the Act, proposed by item 7 of this Schedule.

 

Item 7        At the end of section 88

 

169.      This item would amend section 88 by inserting a new subheading at the end of section 88 titled “Variation or approval with additional conditions or variations of conditions”. The proposed subheading is intended to assist readers in their understanding of section 88 as proposed to be amended and to improve readability.

 

170.      This item would also insert new subsections 88(3) and 88(4).

 

171.      New subsection 88(3) would provide that, if the Secretary makes a variation, or gives an approval, with additional conditions or variation of conditions, in relation to the accreditation of a property under proposed new paragraph 87(2)(ab), the Secretary must give the manager of the property a written notice of the variation or approval.

 

172.      New subsection 88(4) would provide the requirements for a notice given under proposed subsection 88(3 ) of the Act. It provides that the notice must state the following:

 

·          the day after any response requested in the written notice given to the manager under subsection 87(5) is received by the Secretary;

·          the end of 14 days after the show cause notice was given;

 

173.      These requirements are modelled on those in existing subsection 91(2) of the Act, which sets out the notice requirements where the Secretary makes a variation in relation to the accreditation of a property under subsection 90(1) of the Act.

 

174.      The note following new subsection 88(4) is intended to draw the reader’s attention to section 82 of the Act, which provides the period of effect of an accreditation of a property.

Item 8        Paragraphs 89(1)(a) and (2)(a)

 

175.      This item would omit the words “ subsection 87(2)” in paragraphs 89(1)(a) and (2)(a), and substitute “paragraph 87(2)(a) or 87(2)(ab)”.

 

176.      Section 89 of the Act provides that certain variations must not be made unless approved. The purpose of this amendment is to refer to the new decision to make a variation, or give an approval, with additional conditions or variation of conditions, in relation to the accreditation of a property under proposed new paragraph 87(2)(ab), which is inserted by item 1 of this Schedule.

 

Registered establishments

 

177.      Chapter 4 of the Act allows the Secretary, on application by the occupier of an establishment, to register the establishment for a kind of export operations in relation to a kind of prescribed goods. The registration of an establishment is subject to certain conditions. The matters covered by the registration of an establishment or the conditions of the registration may be varied.

 

178.      Under section 113 of the Act, when registering an establishment, the Secretary has the power to impose any additional conditions, in addition to the conditions provided by the Act or prescribed by the rules, that the Secretary considers appropriate and that are specified in the notice of decision of the registration. The Secretary can also decide that one or more conditions prescribed by the rules are not to be conditions of the registration.

 

179.      Under subsection 120(1) of the Act, the occupier of a registered establishment may apply to the Secretary to vary the registration in relation to certain matters, to approve an alteration of the establishment (including an addition to the establishment), to vary the conditions of the registration, to vary the particulars relating to the registration to make a minor change to a matter, or to vary any other aspect of the registration. If the Secretary receives such an application, the Secretary must decide under subsection 120(2) to either make the variation or approve the alteration, or refuse to make the variation or approve the alteration.

 

180.      Currently, the Secretary does not have the power to impose additional conditions or vary the conditions of the registration at the time of approving a variation of the registration or alteration of the establishment, as they could when approving the registration of an establishment under section 120 of the Act (with the ability to decide conditions under section 121 of the Act) or renewing the registration of the establishment under section 117 of the Act (with the ability to decide conditions under section 118 of the Act).

 

181.      There may be circumstances where a proposed variation of a registration or alteration of an establishment will only meet the requirements under the Act or the rules if the Secretary requires the existing conditions of the registration to be varied or additional conditions imposed. Providing the Secretary with the proposed new power will mean that the Secretary can make the variation, or approve the alteration, with additional conditions or variations of conditions, in circumstances where the Secretary otherwise may need to refuse to make the variation or give the approval.

 

182.      The Secretary already has the power under section 123 of the Act to vary the conditions of the registration of an establishment in certain circumstances. The new power to vary the conditions of registration at the time of approving a requested variation will include the same restrictions and procedural fairness requirements as currently specified under section 123 of the Act, but will streamline administrative processes to allow the Secretary to require relevant additional changes at the same time as the variation.

Item 9                 After paragraph 120(2)(a)

 

183.      This item would insert new paragraph 120(2)(ab), which would give the Secretary the power when considering an application under subsection 120(1) to make the variation of the registration, or approve the alteration of the establishment, with additional conditions or variations of conditions.

 

184.      The purpose of the proposed amendment is to provide the Secretary with the ability to require the conditions of the registration to be varied, at the time of considering an application under subsection 120(1), including by varying any existing conditions of the registration, or by imposing any additional conditions that the Secretary considers appropriate.

 

185.      There are restrictions imposed on the Secretary’s ability to require the conditions of the registration to be varied that are set out below at item 13, including the grounds that must be met in order to require the conditions of the registration to be varied or added, and procedural fairness requirements.

 

Item 10               Subsection 120(2) (note 3)

 

186.      This item would amend note 3 after subsection 120(2) by omitting the words “to refuse the application” and substituting the words “to approve the application with additional conditions or variations of conditions, or to refuse the application,”.

 

187.      Note 3 as amended would explain that a decision to approve the application with additional conditions or variations of conditions, or to refuse the application, is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382 of the Act).

 

188.      Part 2 of Chapter 11 relates to the review of decisions and section 382 imposes requirements on the decision-maker to given written notice of the terms of a decision, reasons for decision, and information about the person’s right to merits review.

 

189.      This proposed amendment would be consequential to proposed item 33 of this Schedule, which provides that a decision under new paragraph 120(2)(ab) to make a variation or give an approval with additional conditions or variations of conditions in relation to the registration of an establishment is a reviewable decision.

Item 11               Subsection 120(3)

 

190.      This item would amend subsection 120(3) by omitting the words “ the variation or approve the alteration,” and substituting the words “a decision under paragraph (2)(a) or, subject to subsections (4) and (5), paragraph (2)(ab),”.

 

191.      Subsection 120(3) currently provides for grounds on which the Secretary may make the requested variation to a registration or approve the requested alteration of an establishment. The effect of the amendment would be refer also to a decision under proposed new paragraph 120(2)(ab) to make or approve a variation subject to additional or varied conditions, and to make clear that such a decision would be subject to proposed new subsections 120(4) and (5) which provide the grounds for requiring the conditions to be added or varied and set out procedural fairness requirements.

 

192.      This proposed amendment would be consequential to the insertion of new paragraph 120(2)(ab), proposed by item 9 of this Schedule.

Item 12               Subsection 120(3)

 

193.      This item would amend subsection 120(3) by omitting the words “ the variation were made or the alteration were approved”, and substituting the words “the decision is made”.

 

194.      Subsection 120(3) currently provides for grounds on which the Secretary may make the requested variation to a registration or approve the requested alteration of an establishment. The proposed amendment replaces the specific reference to the decision to make or approve a requested variation, with a reference to a “decision” which would also encompass the new decision to make or approve the requested variation or alteration subject to additional or varied conditions.

 

195.      This proposed amendment would be consequential to the insertion of new paragraph 120(2)(ab), proposed by item 9 of this Schedule.

Item 13               At the end of section 120

 

196.      This item would amend section 120 by inserting a new subheading at the end of section 120 titled “Making variation or approving alteration with additional conditions or variations of conditions”. This item would also insert new subsections 120(4), (5) and (6).

 

197.      New subsection 120(4) would provide that the Secretary may make the variation, or approve the alteration, with additional conditions or variations of conditions under proposed new paragraph 120(2)(ab) only if the Secretary reasonably believes that the additional conditions or variations of conditions are necessary:

 

·          to ensure the integrity of a kind of prescribed goods covered by the registration; or

·          to ensure:

·          compliance with the requirements of the Act in relation to the export operations and prescribed goods covered by the registration; or

·          that importing country requirements relating to the export operations and prescribed goods covered by the registration are, or will be, met; or

·          to ensure compliance with a condition of the registration; or

·          to address circumstances relating to the condition of, or the equipment or facilities in, the registered establishment that have changed or will change; or

·          to address circumstances relating to a change to the suitability of the establishment for the export operations covered by the registration; or

·          to correct a minor or technical error; or

·          for any other reason prescribed by the rules.

 

198.      The purpose of this amendment is to limit the circumstances in which the Secretary can impose additional conditions or vary the conditions of a registration when considering an application by an occupier of a registered establishment under subsection 120(1) to vary the registration, to approve an alteration of the establishment, to vary conditions of the registration, to vary the particulars relating to the registration to make a minor change to a matter, or to vary any other aspect of the registration. The circumstances listed in proposed new subsection 120(4) are modelled on the relevant circumstances in existing subsection 123(2), which apply to the exercise of the Secretary’s power under section 123(1) of the Act to make a variation to the registration of an establishment.

 

199.      New subsection 120(5) would provide that the Secretary must not make a decision under proposed new paragraph 120(2)(ab) unless the Secretary has given a written notice to the occupier of the establishment in accordance with proposed subsection 120(6) of the Act. The purpose of this amendment is to ensure the occupier of the establishment is provided with an opportunity to respond to a notice of the variation or approval of alteration where the Secretary makes the variation, or approves the alteration, with additional conditions or variation of conditions in relation to the registered establishment.

 

200.      New subsection 120(6) would provide the requirements for a notice given under proposed subsection 120(5). It provides that the written notice must:

 

·          specify each proposed additional condition or variation of a condition; and

·          specify the grounds for each proposed additional condition or variation of condition; and

·          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 additional conditions or variations of conditions should not be made; and

·          include a statement setting out the occupier’s right to seek review of a decision made under proposed new paragraph 120(2)(ab) (inserted by item 9 of this Schedule).

 

201.     The requirements for the notice are modelled on those in existing subsection 123(4) of the Act, which sets out the notice requirements where the Secretary proposes to make a variation in relation to the registration of an establishment under subsection 123(1) of the Act .

Item 14               Before subsection 121(2)

 

202.      This item would insert a new subheading titled “Variation or approval” before subsection 121(2) of the Act. The proposed subheading is intended to assist readers in their understanding of section 121 as proposed to be amended and to improve readability.

 

203.      This proposed amendment would be consequential to the further amendments to section 121 of the Act, proposed by item 15 of this Schedule.

Item 15               At the end of section 121

 

204.      This item would amend section 121 by inserting a new subheading at the end of section 121 titled “Variation or approval with additional conditions or variations of conditions”. The proposed subheading is intended to assist readers in their understanding of section 121 as proposed to be amended and to improve readability.

 

205.      This item would also insert new subsections 121(4), (5) and (6).

 

206.      New subsection 121(4) would provide that, if the Secretary makes a variation, or approves an alteration, with additional conditions or variation of conditions, in relation to the registration of an establishment under proposed new paragraph 120(2)(ab), the Secretary must give the occupier of the establishment written notice of the variation or approval.

 

207.      New subsection 121(5) would provide the requirements for a notice given under proposed subsection 121(4) of the Act. It provides that the notice must state the following:

 

·          the details of the variation or approval;

·          if the Secretary varied the conditions of the registration as requested in the application under subsection 120(1)—the varied conditions;

·          the additional conditions or variations of conditions;

·          the date the variation, approval, varied conditions or additional conditions take effect, which must not be before the earlier of the following:

·          the day after any response requested in the written notice given to the occupier under subsection 120(5) is received by the Secretary;

·          the end of 14 days after the show cause notice was given;

·          any other information prescribed by the rules.

 

208.      These requirements are modelled on those in existing subsection 121(2) of the Act, which sets out the notice requirements where the Secretary makes a variation in relation to the registration of an establishment under subsection 120(2) of the Act.

 

209.      New subsection 121(6) would provide for the Secretary to give the occupier of a registered establishment a new certificate of registration within 7 days after making the variation or giving the approval, if the certificate of registration for the establishment needs to be changed to take account of the variation, approval, varied conditions or additional conditions.

 

210.      The note following new subsection 121(6) is intended to draw the reader’s attention to section 115 of the Act, which provides for the period of effect of a registration of an establishment.

Item 16               Subparagraph 122(1)(b)(ii)

 

211.      This item would omit the words “ subsection 120(2)” in subparagraph 122(1)(b)(ii), and substitute “paragraph 120(2)(a) or 120(2)(ab)”.

 

212.      Section 122 of the Act provides that certain alterations of a registered establishment must not be made unless approved. The purpose of this amendment is to refer to the new decision to make a variation, or give an approval, with additional conditions or variation of conditions, in relation to the registration of an establishment under proposed new paragraph 120(2)(ab), which is inserted by item 9 of this Schedule.

 

Approved arrangements

 

213.      Chapter 5 of the Act allows the Secretary, on application by a person, to approve a proposed arrangement for a kind of export operations in relation to a kind of prescribed goods. These arrangements are subject to certain conditions. An approved arrangement or the conditions of the approved arrangement may be varied.

 

214.      Under section 152 of the Act, when approving an arrangement, the Secretary has the power to impose any additional conditions, in addition to the conditions provided by the Act or prescribed by the rules, that the Secretary considers appropriate and that are specified in the notice of decision of the arrangement. The Secretary can also decide that one or more conditions prescribed by the rules are not to be conditions of the accreditation.

 

215.      Under subsection 161(1) of the Act, the holder of an approved arrangement may apply to the Secretary to approve a variation of their approved arrangement or to vary the conditions of the approved arrangement. If the Secretary receives such an application, the Secretary must decide under subsection 161(2) to either approve the variation or vary the conditions, or refuse to approve the variation or vary the conditions.

 

216.      Currently, the Secretary does not have the power to impose additional conditions or vary the conditions of the approved arrangement as part of the process of approving a variation, as they could when approving an arrangement under section 151 of the Act (with the ability to decide conditions under section 152 of the Act) or renewing the approved arrangement under section 156 of the Act (with the ability to decide conditions under section 157 of the Act).

 

217.      There may circumstances where a proposed variation of an approved arrangement will only meet the requirements under the Act or the rules if the Secretary requires the existing conditions of the arrangement to be varied or additional conditions imposed. Providing the Secretary with the proposed new power will mean that the Secretary can approve the variation, or vary the conditions, subject to the required additional conditions or variations of conditions, in circumstances where the Secretary may otherwise would need to refuse to approve variation or vary the conditions.

 

218.      The Secretary has the power under section 165 of the Act to vary the conditions of an approved arrangement in certain circumstances. The new power to vary the conditions of the arrangement at the time of approving a requested variation will include the same restrictions and procedural fairness requirements as currently specified under section 165, but will streamline administrative processes to allow the Secretary to require relevant additional changes at the same time as the variation .

Item 17               After paragraph 161(2)(a)

 

219.      This item would insert new paragraph 161(2)(ab), which would give the Secretary the power when considering an application under subsection 161(1) to approve the variation or vary the conditions, with additional conditions or variations of conditions.

 

220.      The purpose of the proposed amendment is to provide the Secretary with the ability to require the conditions of the approved arrangement to be varied, at the time of considering an application under subsection 161(1), including by varying any existing conditions of the approved arrangement, or by imposing any additional conditions that the Secretary considers appropriate.

 

221.      There are restrictions imposed on the Secretary’s ability to require the conditions of the approved arrangement to be varied that are set out below at item 19, including the grounds that must be met in order to require the conditions of the arrangement to be varied or added, and procedural fairness requirements.

Item 18               Subsection 161(2) (note 3)

 

222.      This item would amend note 3 at subsection 161(2) by omitting the words “to refuse the application” and substituting the words “to approve the application with additional conditions or variations of conditions, or to refuse the application,”.

 

223.      Note 3 as amended would explain that a decision to approve the application with additional conditions or variations of conditions, or to refuse the application, is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382 of the Act).

 

224.      Part 2 of Chapter 11 relates to the review of decisions and section 382 imposes requirements on the decision-maker to given written notice of the terms of a decision, reasons for decision, and information about the person’s right to merits review.

 

225.      This proposed amendment would be consequential to proposed item 34 of this Schedule, which provides that a decision under new paragraph 161(2)(ab) to approve a variation of an approved arrangement or vary conditions of an approved arrangement with additional conditions or variations of conditions is a reviewable decision.

Item 19               After subsection 161(2)

226.      This item would amend section 161 by inserting a new subheading at the end of subsection 161(2) titled “ Approval with additional conditions or variations of conditions”. This item would also insert new subsections 161(2A), (2B) and (2C).

 

227.      New subsection 161(2A) would provide that the Secretary may approve the variation, or vary the conditions, with additional conditions or variations of conditions under proposed new paragraph 161(2)(ab) only if the Secretary reasonably believes that the additional conditions or variations of conditions are necessary:

 

·          to ensure the integrity of a kind of prescribed goods covered by the approved arrangement; or

·          to ensure that export operations covered by the approved arrangement will be carried out in accordance with the approved arrangement; or

·          to ensure compliance with a condition of the approved arrangement; or

·          to address circumstances relating to a kind of export operations carried out in relation to a kind of prescribed goods covered by the approved arrangement that have changed or will change; or

·          to ensure:

-           compliance with the requirements of this Act in relation to the export operations and goods covered by the approved arrangement; or

-           that importing country requirements relating to the export operations and goods covered by the approved arrangement are, or will be, met; or

·          to correct a minor or technical error; or

·          for any other reason prescribed by the rules.

                

228.      The purpose of this amendment is to limit the circumstances in which the Secretary can impose additional conditions or vary the conditions of an approved arrangement when considering an application by holder of an approved arrangement under subsection 161(1) to vary the approved arrangement or vary the conditions of the approved arrangement. The circumstances listed in proposed new subsection 161(2A) are modelled on the relevant circumstances in existing subsection 165(2), which apply to the exercise of the Secretary’s power under subsection 165(1) of the Act to make a variation to an approved arrangement.

 

229.      New subsection 161(2B) would provide that the Secretary must not make a decision under proposed new paragraph 161(2)(ab) unless the Secretary has given a written notice to the holder of the approved arrangement in accordance with proposed subsection 161(2C) of the Act. The purpose of this amendment is to ensure the holder of an approved arrangement is provided with an opportunity to respond to a notice of the variation where the Secretary makes the variation with additional conditions or variation of conditions in relation to the approved arrangement.

 

230.      New subsection 161(2C) would provide the requirements for a notice given under proposed subsection 161(2B). It provides that the written notice must:

·          specify each proposed additional condition or variation of a condition; and

·          specify the grounds for each proposed additional condition or variation of a condition; and

·          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 additional conditions or variations of conditions should not be made ; and

·          include a statement setting out the holder’s right to seek review of a decision made under proposed new paragraph 161(2)(ab) (inserted by item 17 of this Schedule).

 

231.      The requirements for the notice are modelled on those in existing subsection 165(4) of the Act, which outlines the notice requirements where the Secretary proposes to make a vary the conditions of an approved arrangement subsection 165(1) of the Act.

Item 20               Before subsection 161(3)

 

232.      This item would amend subsection 161 by inserting the word “Refusal” before subsection 161(3).

 

233.      This proposed amendment would be consequential to the insertion of new subsection 161(3), proposed by item 22 of this Schedule. The proposed subheading is intended to assist readers in their understanding of section 161 and to improve readability.

Item 21               Before subsection 162(1)

 

234.      This item would amend subsection 162(1) by inserting the word “Approval” before subsection 162(1).

 

235.      This proposed amendment would be consequential to the insertion of new subsection 161(3), proposed by item 22 of this Schedule. The proposed subheading is intended to assist readers in their understanding of section 162 and to improve readability.

Item 22               At the end of section 162

 

236.      This item would amend section 162 by inserting a new subheading at the end of subsection 162 titled “Approval with additional conditions or variations of conditions”. The proposed subheading is intended to assist readers in their understanding of section 162 and to improve readability.

 

237.      This item would also insert new subsections 162(3) and (4).

 

238.      New subsection 162(3) would provide that, if the Secretary approves a variation of an approved arrangement, or varies the conditions of an approved arrangement, with additional conditions or variations of conditions under paragraph 161(2)(ab), the Secretary must give the holder of the approved arrangement written notice of the approval or variation.

 

239.      New subsection 162(4) would provide the requirements for a notice given under proposed subsection 162(3) of the Act. It provides that the notice must state the following:

·          if the Secretary approved a variation of the approved arrangement—the details of the variation;

·          if the Secretary varied the conditions of the approved arrangement as requested in the application under subsection 161(1)—the varied conditions;

·          the additional conditions or variations of conditions;

·          the date the variation, varied conditions or additional conditions take effect, which must not be before the earlier of the following:

-           the day after any response requested in the written notice given to the holder under subsection 161(2B) is received by the Secretary;

-           the end of 14 days after the show cause notice was given;

·          any other information prescribed by the rules.

                                

240.      These requirements are modelled on those in existing subsection 162(2) of the Act, which sets out the notice requirements where the Secretary makes a variation in relation to the accreditation of a property under subsection 161(2) of the Act.

 

241.      The note following new subsection 162(4) is intended to draw the reader’s attention to section 154 of the Act, which provides the period of effect of an approved arrangement.

Item 23               Subparagraphs 163(1)(b)(i) and (ii)

 

242.      This item would insert the words “or 161(2)(ab)” after “paragraph 161(2)(a)” in subparagraphs 163(1)(b)(i) and (ii) of the Act.

 

243.      Section 163 of the Act provides that certain variations must not be implemented unless the variation is approved. The purpose of this amendment is to refer to the new decision to make a variation, or give an approval, with additional conditions or variation of conditions, in relation to an approved arrangement under proposed new paragraph 161(2)(ab), which is inserted by item 17 of this Schedule.

Item 24               Subparagraphs 165(2)(e)(i), 171(1)(f)(i) and 179(1)(f)(i)

 

244.      This item would omit the word “; and” in subparagraphs 165(2)(e)(i), 171(1)(f)(i) and 179(1)(f)(i) and substitute the word “; or”.

 

245.      Sections 165, 171 and 179 of the Act relate to variations, suspensions and revocations of approved arrangements. All the amended provisions currently provide that a ground for variation, suspension or revocation of the approved arrangement is 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:

 

 

246.      The effect of the proposed amendments is to change the “and” in these provisions to “or”, with the purpose of ensuring that the provisions operate as intended. The proposed amendments would clarify that the Secretary’s power to require a variation to an approved arrangement is enlivened where it is needed to ensure compliance either with the requirements of the Act or with the importing country requirements, and that the Secretary’s power is not restricted to circumstances where a variation is necessary to ensure compliance with both the requirements of the Act and also with importing country requirements.

Export licences

 

247.      Chapter 6 of the Act allows the Secretary, on application by a person, to grant the person an export licence to carry out a kind of export operations in relation to a kind of prescribed goods. An export licence is subject to certain conditions. The matters covered by an export licence or the conditions of the export licence may be varied.

 

248.      Under section 192 of the Act, when granting an export licence, the Secretary has the power to impose any additional conditions, in addition to the conditions provided by the Act or prescribed by the rules, that the Secretary considers appropriate and that are specified in the licence. The Secretary can also decide that one or more conditions prescribed by the rules are not to be conditions of the accreditation.

 

249.      Under subsection 199(1) of the Act, the holder of an export licence may apply to the Secretary to vary the licence in relation to certain matters, or to vary the conditions of the licence. If the Secretary receives such an application, the Secretary must decide under subsection 199(2) to either make the variation or refuse to make the variation.

 

250.      Currently, the Secretary does not have the power to impose additional conditions or vary the conditions of the export licence as part of the process of approving a variation, as they could when granting the licence under section 191 of the Act (with the ability to decide conditions under section 192 of the Act) or renewing the licence under section 196 of the Act (with the ability to decide conditions under section 197 of the Act).

 

251.      There may circumstances where a proposed variation of an export licence will only meet the requirements under the Act or the rules if the Secretary requires the existing conditions of the licence to be varied or additional conditions imposed. Providing the Secretary with the proposed new power will mean that the Secretary can make the variation, subject to the required additional conditions or variations of conditions, in circumstances where the Secretary otherwise may need to refuse to make the variation.

 

252.      The Secretary already has the power under section 201 of the Act to vary the conditions of an export licence in certain circumstances. The new power to vary the conditions of an export licence at the time of approving a requested variation will include the same restrictions and procedural fairness requirements as currently specified under section 201 of the Act, but will streamline administrative processes to allow the Secretary to require relevant additional changes at the same time as the variation.

Item 25               After subparagraph 199(2)(a)

 

253.      This item would insert new paragraph 199(2)(ab), which would give the Secretary the power when considering an application under subsection 199(1) to approve the variation with additional conditions or variations of conditions.

 

254.      The purpose of the proposed amendment is to provide the Secretary with the ability to require the conditions of the export licence to be varied, at the time of considering an application under subsection 199(1), including by varying any existing conditions of the licence, or by imposing any additional conditions that the Secretary considers appropriate.

 

255.      There are restrictions imposed on the Secretary’s ability to require the conditions of the export licence to be varied that are set out below at item 28, including the grounds that must be met in order to require the conditions of the licence to be varied or added, and procedural fairness requirements.

Item 26               Subsection 199(2) (note 3)

 

256.      This item would amend note 3 after subsection 199(2) by inserting the words “approve the application with additional conditions or variations of conditions or to” after “A decision to”.

 

257.      Note 3 as amended would explain that a decision to approve the application with additional conditions or variations of conditions, or to refuse the application, is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382 of the Act).

 

258.      Part 2 of Chapter 11 relates to the review of decisions and section 382 imposes requirements on the decision-maker to given written notice of the terms of a decision, reasons for decision, and information about the person’s right to merits review.

 

259.      This proposed amendment would be consequential to proposed item 35 of this Schedule, which provides that a decision under new paragraph 199(2)(ab) to make a variation or give an approval with additional conditions or variations of conditions in relation to an export licence is a reviewable decision.

 

Item 27               Subsection 199(3)

 

260.      This item would omit the words “the variation” in subsection 199(3) and substitute the words “a decision under paragraph (2)(a) or, subject to subsections (4) and (5), paragraph (2)(ab)”.

 

261.      Subsection 199(3) currently provides for grounds on which the Secretary may make the requested variation in relation to an export licence. The effect of the amendment would be to refer also to a decision under proposed new paragraph 199(2)(ab) to make the variation subject to additional or varied conditions, and to make clear that such a decision would be subject to proposed new subsections 199(4) and (5) which provide the grounds for requiring the conditions to be added or varied and set out procedural fairness requirements.

 

262.      This proposed amendment would be consequential to the insertion of new paragraph 199(2)(ab), proposed by item 25 of this Schedule.

 

Item 28               At the end of section 199

263.      This item would amend section 199 by inserting a new subheading at the end of section 199 titled “Variation with additional conditions or variations of conditions”. This item would also insert new subsections 199(4), (5) and (6).

 

264.      New subsection 199(4) would provide that the Secretary may make the variation with additional conditions or variations of conditions under proposed new paragraph 199(2)(ab) only if the Secretary reasonably believes that the additional conditions or variations of conditions are necessary:

 

·          to ensure the integrity of a kind of prescribed goods covered by the licence; or

·          to ensure:

-           compliance with the requirements of this Act in relation to the export operations and prescribed goods covered by the licence; or

-           that importing country requirements relating to the export operations and prescribed goods covered by the licence are, or will be, met; or

·          to ensure compliance with a condition of the licence; or

·          to correct a minor or technical error; or

·          for any other reason prescribed by the rules.

265.      The purpose of this amendment is to limit the circumstances in which the Secretary can impose additional conditions or vary the conditions of an export licence when considering an application by the holder of the export licence under subsection 199(1) to vary the export licence or vary the conditions of the licence. The circumstances listed in proposed new subsection 199(4) are modelled on the relevant circumstances in existing subsection 201(2), which apply to the exercise of the Secretary’s power under subsection 201(1) of the Act to make a variation to an export licence.

 

266.      New subsection 199(5) would provide that the Secretary must not make a decision under proposed new paragraph 199(2)(ab) unless the Secretary has given a written notice to the holder of the export licence in accordance with proposed subsection 199(6) of the Act. The purpose of this amendment is to ensure the holder of an export licence is provided with an opportunity to respond to a notice of the variation where the Secretary makes the variation with additional conditions or variation of conditions in relation to the export licence.

 

267.      New subsection 199(6) would provide the requirements for a notice given under proposed subsection 199(5) of the Act. It provides that the written notice must:

 

·          specify each proposed additional condition or variation of a condition; and

·          specify the grounds for each proposed additional condition or variation of a condition; and

·          request the holder of the licence to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed additional conditions or variations of conditions should not be made; and

·          include a statement setting out the holder’s right to seek review of a decision made under paragraph 199(2)(ab) (inserted by item 25 of this Schedule).

 

268.      The requirements for the notice are modelled on those in existing subsection 201(4) of the Act, which outlines the notice requirements where the Secretary proposes to make a variation in relation to an export licence under subsection 201(1) of the Act.

 

Item 29               Before subsection 200(1)

 

269.      This item would insert a new subheading titled “Variation” before subsection 200(1) of the Act. The proposed subheading is intended to assist readers in their understanding of section 200 as proposed to be amended and to improve readability.

Item 30               At the end of section 200

 

270.      This item would amend section 200 by inserting a new subheading at the end of section 200 titled “ Variation with additional conditions or variations of conditions ”. The proposed subheading is intended to assist readers in their understanding of section 200 as proposed to be amended and to improve readability.

 

271.      This item would also insert new subsections 200(4), (5) and (6).

 

272.      New subsection 200(4) would provide that, if the Secretary makes a variation with additional conditions or variations of conditions under paragraph 199(2)(ab), the Secretary must give the holder of the licence written notice of the variation.

 

273.      New subsection 200(5) would provide the requirements for a notice given under proposed subsection 200(4) of the Act. It provides that the notice must state the following:

 

·          details of the variation;

·          if the Secretary varied the conditions of the licence as requested in the application under subsection 199(1)—the varied conditions;

·          the additional conditions or variations of conditions;

·          the date the variation, varied conditions or additional conditions take effect, which must not be before the earlier of the following:

-           the day after any response requested in the written notice given to the holder under subsection 199(5) is received by the Secretary;

-           the end of 14 days after the show cause notice was given;

·          any other information prescribed by the rules.

 

274.      These requirements are modelled on those in existing subsection 200(2) of the Act, which sets out the notice requirements where the Secretary makes a variation in relation to an export licence under subsection 199(2) of the Act.

 

275.      New subsection 200(6) would provide that, if the export licence needs to be changed to take account of the variation, varied conditions or additional conditions, the Secretary must, within 7 days after making the variation, give the holder of the licence a new export licence including the variation, varied conditions or additional conditions.

 

276.      The note following new subsection 200(6) is intended to draw the reader’s attention to section 194 of the Act, which provides for the period of effect of an export licence.

Fit and proper person test

 

277.      Section 372 of the Act provides for the fit and proper person test. Subsection 372(1) of the Act provides that the fit and proper person test applies for the purposes of decisions in relation to registered establishments, approved arrangements or export licences, and any other provision of the Act prescribed by the rules.

 

278.      Subsection 372(2) of the Act sets out the matters to which the Secretary must have regard in determining whether a person is a fit and proper person. These include whether the person or an associate of the person has been convicted of an offence against or ordered to pay a pecuniary penalty under certain Acts (paragraph 372(2)(a) of the Act), whether a debt is due and payable by the person, or an associate of the person, to the Commonwealth under an Act referred to in paragraph 372(2)(a) (paragraph 372(2)(b) of the Act) and whether the person, or an associate of the person, has contravened an Act referred to in paragraph 372(2)(a) (paragraph 372(2)(d) of the Act).

 

279.      The Acts that are relevant to these matters are listed in paragraph 372(2)(a) of the Act. Subparagraph 372(2)(a)(vi) also allows the rules to prescribe other Acts for the purposes of the fit and proper person test.

 

280.      Currently, information collected under the Primary Industries Levies and Charges Collection Act 1991 (the PILCC Act) is already required to be considered by the Secretary for the purposes of the fit and proper person test under section 4-1 of the Export Control (Miscellaneous) Rules 2021 (the Miscellaneous Rules). However, for administrative consistency and clarity, the provision should instead reside in the Act.

 

Item 31               After subparagraph 372(2)(a)(v)

 

281.      This item would insert new subparagraph 372(2)(a)(va) referring to the Primary Industries Levies and Charges Collection Act 1991 .

 

282.      The effect of this amendment is that in determining whether a person is a fit and proper person, the Secretary must have regard to whether the person or an associate of the person has been convicted of an offence against, or ordered to pay a pecuniary penalty under, the PILCC Act. Due to paragraphs 372(2)(b) and (d) of the Act, the Secretary would also be required to consider whether a debt is due and payable by the person, or an associate of the person, to the Commonwealth under the PILCC Act, and whether the person, or an associate of the person, has contravened the PILCC Act.

 

283.      The meaning of “associate” is set out in section 13 of the Act and includes, for example, a person who is or was a consultant, employer or employee, a family member or any other person who is concerned in, or in a position to control or influence the conduct of, a business or undertaking of the person.

 

284.      As the Department administers the PILCC Act, it is considered appropriate that such matters would be considered by the Secretary in making relevant decisions under the Act relating to the fit and proper person test.

 

285.      Part 2 of Chapter 11 of the Act makes provision for internal review or review by the Administrative Appeals Tribunal in relation to decisions made under the Act to which the fit and proper person test is relevant.

 

Merits review

Item 32               Subsection 381(1) (after table item 6)

 

286.      This item would insert a new table item 6A in subsection 381(1) of the Act. This item would provide that a decision to make a variation or give an approval with additional conditions or variations of conditions in relation to the accreditation of a property under paragraph 87(2)(ab) is a reviewable decision. It would provide that the relevant person for the reviewable decision is the manager of the property.

 

287.      New paragraph 87(2)(ab) is inserted by item 1 of this Schedule.

Item 33               Subsection 381(1) (after table item 22)

 

288.      This item would insert a new table item 22A in subsection 381(1) of the Act. This item would provide that a decision to make a variation or approve an alteration with additional conditions or variations of conditions in relation to the registration of an establishment under paragraph 120(2)(ab) is a reviewable decision. It would provide that the relevant person for the reviewable decision is the occupier of the establishment.

 

289.      New paragraph 120(2)(ab) is inserted by item 9 of this Schedule.

 

 

Item 34               Subsection 381(1) (after table item 38)

 

290.      This item would insert a new table item 38A in subsection 381(1) of the Act. This item would provide that a decision to approve a variation of an approved arrangement or vary conditions of an approved arrangement with additional conditions or variations of conditions under paragraph 161(2)(ab) is a reviewable decision. It would provide that the relevant person for the reviewable decision is the holder of the approved arrangement.

 

291.      New paragraph 161(2)(ab) is inserted by item 17 of this Schedule.

 

Item 35               Subsection 381(1) (after table item 56)

 

292.      This item would insert a new table item 56A in subsection 381(1) of the Act. This item would provide that a decision to make a variation with additional conditions or variations of conditions in relation to an export licence under paragraph 199(2)(ab) is a reviewable decision. It would provide that the relevant person for the reviewable decision is the holder of the export licence.

 

293.      New paragraph 199(2)(ab) is inserted by item 25 of this Schedule.

Part 2—Application provisions

Item 36               Definitions

 

294.       This item would provide that in Part 2 of this Schedule:

 

• amending Part means Part 1 of this Schedule;
• commencement day means the day this Schedule commences; and
• Export Control Act means the Export Control Act 2020 .

Item 37               Application—application for variation of accreditation

 

295.      This item would provide an application provision for the amendments in items 1 to 8 of this Schedule relating to the variation of an accreditation.

 

296.      Item 37 would provide that, if the Secretary had not made a decision in relation to an application made under section 87 of the Export Control Act before the commencement day, sections 87 and 88 of the Export Control Act, as amended by Part 1 of this Schedule, apply in relation to the application and the decision.

Item 38               Application—application for variation of registration

 

297.      This item would provide an application provision for the amendments in items 9 to 16 of this Schedule relating to the variation of a registration of an establishment.

 

298.      Item 38 would provide that, if the Secretary had not made a decision in relation to an application made under section 120 of the Export Control Act before the commencement day, sections 120 and 121 of the Export Control Act, as amended by Part 1 of this Schedule, apply in relation to the application and the decision.

Item 39               Application—application for variation of approved arrangement

 

299.      This item would provide an application provision for the amendments in items 17 to 23 of this Schedule relating to the variation of an approved arrangement.

 

300.      Item 39 would provide that, if the Secretary had not made a decision in relation to an application made under section 161 of the Export Control Act before the commencement day, sections 161 and 162 of the Export Control Act, as amended by Part 1 of this Schedule, apply in relation to the application and the decision.

Item 40               Application—application for variation of export licence

 

301.      This item would provide an application provision for the amendments in items 25 to 30 of this Schedule relating to the variation of an export licence.

 

302.      Item 40 would provide that, if the Secretary had not made a decision in relation to an application made under section 199 of the Export Control Act before the commencement day, sections 199 and 200 of the Export Control Act, as amended by Part 1 of this Schedule, apply in relation to the application and the decision.

Item 41               Application—fit and proper person test

 

303.      This item would provide an application provision for the amendment in item 31 of this Schedule relating to the fit and proper person test.

 

304.      Item 41 would provide that, if the Secretary had not made a decision in relation to an application made under section 111, 116, 120, 150, 155, 190 or 195 of the Export Control Act before the commencement day, subparagraph 372(2)(a)(va) of the Export Control Act, as inserted by the amending Part, applies in relation to the application and the decision.

 

305.      Subparagraph 372(2)(a)(va) of the Act is inserted by item 31 of this Schedule.

 

306.      Sections 111, 116, 120, 150, 155, 190 or 195 of the Act provide for applications for decisions made under the Act to which the fit and proper person test is relevant. These include applications for registration of an establishment, or renewal or variation of registration of an establishment; applications for approval of an arrangement, or renewal of an approved arrangement; and applications for an export licence or renewal of an export licence.

 

 

ATTACHMENT A

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Export Control Amendment (Streamlining Administrative Processes) Bill 2022

This 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.

Overview of the Bill

The Export Control Amendment (Streamlining Administrative Processes) Bill 2022 (the Bill) will amend the Export Control Act 2020 (the Act) to improve the efficiency of the administrative processes involved in the export control framework, including the management of information generated or obtained under the Act.

The Act provides the regulatory framework for the export of goods, as defined by the Act. This includes arrange of agricultural commodities, such as an animal or a plant, or a part of an animal or a plant.

This Bill amends the Act to:

• Enable the more effective sharing of information with government agencies and other bodies, while ensuring appropriate safeguards for protected information;
• Make amendments to allow the Secretary to impose or vary conditions at the same time as approving a variation to an approved arrangement, accredited property, registered establishment, or export licence; and
• Require fit and proper person assessments under the Act to take into consideration certain information received under the Primary Industries Levies and Charges Collection Act 1991 (the PILCC Act); and

·          Make minor technical amendments in relation to the circumstances in which the Secretary can require an approved arrangement to be varied, suspended or revoked, to ensure the provision operates as intended.

Schedule 1 - Information management

Schedule 1 to the Bill seeks to amend the Act to enable more effective management of information obtained or generated under the Act. Schedule 1 to the Bill contains authorisations for the use or disclosure of relevant information and contains civil penalty and offence provisions relating to the unauthorised use or disclosure of protected information.

Relevant information would cover any information obtained or generated by a person in the course of, or for the purposes of, performing functions or duties or exercising powers under the this Act, or assisting another person to perform such functions or duties or exercise such powers (see item 6 of Schedule 1).

Authorised uses and disclosures of relevant information

Schedule 1 to the Bill would insert new Division 2 of Part 3 of Chapter 11 in the Act, which outlines the authorised uses and disclosures of relevant information (see item 12 of Schedule 1). Each provision in new Division 2 would provide an authorisation for the purposes of the Privacy Act 1988 (the Privacy Act) and other laws. It is intended that the authorisations proposed by Schedule 1 would not limit each other.

The proposed amendments would introduce the concept of entrusted persons, who would include the Minister and the Secretary, as well as officers of the Department and Commonwealth officers prescribed in the rules (see item 4 of Schedule 1). These persons would have specific authorisations in Schedule 1 to deal with relevant information in the following manner:

·          Disclosure to foreign governments for the purposes of the export of goods from Australian territory or export operations, managing Australia’s international relations in respect of trade, or giving effect to Australia’s international obligations (new section 389);

·          Use or disclosure for the purposes of the administration of other Acts administered by the Minister (new section 390);

·          Disclosure to a Commonwealth entity for the purposes of assisting the entity to perform its functions or duties or exercise its powers (new section 391);

·          Disclosure to a court or tribunal (new section 392);

·          Disclosure for the purposes of law enforcement (new section 393);

·          Use or disclosure for research, policy development or data analysis to assist the Department to administer the Act or achieve the objects of the Act (new section 394);

·          Use or disclosure of statistics (new section 395);

·          Use or disclosure of publicly available information (new section 396);

·          Disclosure to the person to whom the information relates (new section 397);

·          Use or disclosure with consent given by the person to whom the information relates (new section 397A);

·          Disclosure to the person who provided the information (new section 397B);

·          Disclosure for the purposes of the administration of a law of a State or Territory to a State or Territory (new section 397C).

In addition, certain persons (including entrusted persons) would be authorised to use or disclose relevant information in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Act or assisting another person to perform such functions or duties, or exercise such powers (new section 388). Such persons would include:

·          An entrusted person (which includes the Minister, departmental officers and other Commonwealth officers specified by the rules);

·          A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth;

·          An authorised officer;

·          An approved auditor;

·          An approved assessor;

·          An accredited veterinarian;

·          A nominated export permit issuer;

·          An issuing officer.

This is because the proper, effective and efficient performance of functions or duties, or the exercise of powers, under the Act will often involve the use or disclosure of relevant information.

The Secretary would have additional authorisations in relation to the disclosure of relevant information where use or disclosure of such information is necessary to manage certain severe and immediate threats arising in connection with the export of goods or that have the potential to cause harm on a nationally significant scale. There would be a separate rule-making power for the use or disclosure of specific kinds of relevant information to specific classes of persons, for specific purposes. This would allow for the use or disclosure in other circumstances not covered by new Division 2 of Part 3 of Chapter 11 in the Act, which may arise in the future, and which may require expedient authorisation to effectively manage the export control framework.

Offences and civil penalty provision

Schedule 1 to the Bill would ensure the confidentiality of protected information obtained or generated under the Act. Protected information would cover kinds of information of which an unauthorised use or disclosure would be likely to cause harm (see item 12 of Schedule 1), and would be defined as:

·          Information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;

·          Information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of or more offences;

·          Information the disclosure of which could reasonably be expected to prejudice the security, defence or international relations of Australia;

·          Information of a kind prescribed by the rules for the purposes of new paragraph 397F(1)(d), where such information would or could reasonably be expected to prejudice the effective working of the Department, or otherwise harm the public interest.

New section 397G of the Act would provide a fault-based offence, strict liability offence and civil penalty provision for the unauthorised use or disclosure of protected information (see item 12 of Schedule 1).

Certain persons would contravene new subsection 397G(1) by using or disclosing protected information, where such information was obtained or generated in the course of, or for the purposes of, performing functions or duties or exercising powers under the Act, or assisting another person to perform such functions or duties or exercise such powers. The persons that would be subject to new subsection 397G(1) would be “entrusted persons” (which includes the Minister, departmental officers and other Commonwealth officers specified by the rules) as well as persons employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth, an authorised officer, an approved auditor, an approved assessor, an accredited veterinarian and a nominated export permit issuer.

There would be two exceptions to new subsection 397G(1), which would apply where:

·          The use or disclosure of the protected information is required or authorised by the Act, another Commonwealth law or a prescribed State or Territory law (new subsection 397G(3)); or

·          The person uses or discloses the protected information in good faith in the purported performance of functions or duties, or the purported exercise of powers, under the Act, or assisting another person to purportedly perform such functions or duties or exercise such powers (new subsection 397G(4)).

New subsection 397G(5) would have the effect that a person who contravenes new subsection 397G(1), in circumstances where the exceptions in new subsections 397G(3) and (4) do not apply, would commit a fault-based offence with a maximum penalty of 2 years imprisonment or 120 penalty units, or both.

New subsection 397G(6) would have the effect that a person who contravenes new subsection 397G(1), in circumstances where the exceptions in new subsections 397G(3) and (4) do not apply, would commit a strict liability offence with a maximum penalty of 50 penalty units.

New subsection 397G(7) would establish a corresponding civil penalty provision. A person would be liable to a civil penalty if they contravene new subsection 397G(1), in circumstances where the exceptions in new subsections 397G(3) and (4) do not apply. The maximum civil penalty is 240 penalty units.

The combination of fault-based offence, strict liability offence and civil penalty provision provides an adequate deterrent for persons who use or disclose protected information without authorisation, which has the potential to cause harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce any contravention of new subsection 397G(1) appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected that criminal proceedings would be brought for conduct that contravenes new subsection 397G(1) that is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Infringement notice scheme

Under Division 2 of Part 8 of Chapter 10 of the Act, an infringement officer may give a person an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) for contravention of certain provisions of the Act. The table in subsection 359(1) of the Act lists the relevant provisions of that Act in relation to which an infringement notice may be given. Item 11 of Schedule 1 to the Bill inserts new item 34A into the table in subsection 359(1) of the Act. This has the effect that the strict liability offence in new subsection 397G(6) is subject to an infringement notice under Part 5 of the Regulatory Powers Act. Infringement notices would only be used for low-level contraventions where the facts of the case are clear.

Schedule 2 - Other amendments

Schedule 2 to the Bill seeks to amend the Act to streamline administrative processes in relation to variations of approved arrangements, accredited properties, registered establishments and export licences, and in relation to the consideration of certain information for the purposes of the fit and proper person test, along with other minor technical amendments.

Amendments relating to variations

Under the Act, when accrediting a property, registering an establishment, or approving an arrangement or export licence for a kind of export operations, the Secretary has the power to impose additional conditions, in addition to the conditions provided by the Act or prescribed by the rules, that the Secretary considers appropriate and that are specified in the notice of decision. The Secretary can also decide that one or more conditions prescribed by the rules are not to be conditions of the accreditation, registration, arrangement or licence.

However, the Secretary does not currently have the power to impose additional conditions or vary existing conditions as part of the process of approving a variation of the accreditation, registration, arrangement or licence. There may be circumstances where a proposed variation will only meet the requirements under the Act or rules if the Secretary requires the existing conditions of the accreditation, registration, arrangement or licence to be varied or additional conditions imposed.

The amendments seek to provide the Secretary with a new power to approve a requested variation to an accreditation, registration, arrangement or licence subject to required additional conditions or variations of conditions. This will mean that the Secretary can approve the variation subject to conditions in circumstances where they otherwise may need to refuse to make the variation or give the approval due to the inability to impose additional conditions or vary conditions as part of the variation process.

There are restrictions imposed on the Secretary’s ability to require conditions to be added or varied, including the grounds that must be met in order to require the conditions of the arrangement to be varied or added, and procedural fairness requirements (including the requirement to give a show cause notice). The amendments provide that the new decisions to approve a variation subject to additional or varied conditions are reviewable decisions (see items 32 to 35 of Schedule 2 to the Bill).

Fit and proper person test

Section 372 of the Act currently sets out the matters to which the Secretary must have regard in determining whether a person is a fit and proper person. Currently, information collected under the PILCC Act is already required to be considered by the Secretary for the purposes of the fit and proper person test under section 4-1 of the Export Control (Miscellaneous) Rules 2021 (the Miscellaneous Rules). However, for administrative consistency and clarity, item 31 of Schedule 2 to the Bill seeks to ensure that this provision instead resides in the Act.

The effect of the amendment would be that, in determining whether a person is a fit and proper person, the Secretary must have regard to:

·          whether the person or an associate of the person has been convicted of an offence against, or ordered to pay a pecuniary penalty under, the PILCC Act; and

·          whether a debt is due and payable by the person, or an associate of the person, to the Commonwealth under the PILCC Act, and whether the person, or an associate of the person, has contravened the PILCC Act.

The meaning of “associate” is set out in section 13 of the Act and includes, for example, a person who is or was a consultant, employer or employee, a family member or any other person who is concerned in, or in a position to control or influence the conduct of, a business or undertaking of the person.

Part 2 of Chapter 11 of the Act makes provision for internal review or review by the Administrative Appeals Tribunal in relation to decisions made under the Act to which the fit and proper person test is relevant.

Minor technical amendments

Sections 165, 171 and 179 of the Act relate to variations, suspensions and revocations of approved arrangements. All the amended provisions currently provide that a ground for variation, suspension or revocation of the approved arrangement is 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:

 

·          compliance with the requirements of this Act in relation to those export operations and goods; and

·          that importing country requirements relating to those export operations and goods are met.

The effect of the proposed amendments in item 24 of Schedule 2 to the Bill is to change the “and” in these provisions to “or”, with the purpose of ensuring that the provisions operate as intended. The proposed amendments would clarify that the Secretary’s power to require a variation to an approved arrangement is enlivened where it is needed to ensure compliance either with the requirements of the Act or with the importing country requirements, and that the Secretary’s power is not restricted to circumstances where a variation is necessary to ensure compliance with both the requirements of the Act and also with the importing country requirements.

Assessment of Compatibility with Human Rights

The Bill may engage the following rights:

·                 The right to a fair trial and criminal process rights under Article 14 of the International Covenant on Civil and Political Rights (ICCPR);

·                 The right to protection from arbitrary interference with privacy under Article 17 of the ICCPR;

·                 The right to freedom of opinion and expression under Article 19 of the ICCPR;

·                 The right to freedom of association under Article 22 of the ICCPR; and

·                 The right to work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Right to a fair trial (Article 14 of the ICCPR)

The right to a fair trial and equality before the courts contained in Article 14 of the ICCPR applies to criminal and civil proceedings. The increase in the civil and criminal penalties may engage Article 14 of the ICCPR. Article 14 provides that, in the determination of any criminal charge against the person, or of their rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.

Right to fair trial - Offences and civil penalty provisions

Schedule 1 to the Bill would insert a new fault-based offence, strict liability offence and civil penalty provision for the unauthorised use or disclosure of protected information in new section 397G of the Act. These are outlined in detail in the Overview.

The penalties for the new fault-based offence, strict liability offence and civil penalty provision under Schedule 1 to the Bill do not affect the procedure by which civil and criminal proceedings are heard in relation to contraventions of civil penalty provisions or offences under the Act. The amendments to the civil and criminal penalties proposed by the Bill therefore do not limit the right to a fair hearing contained in Article 14 of the ICCPR.

Right to fair trial - Infringement notice scheme

Under Division 2 of Part 8 of Chapter 10 of the Act and Part 5 of the Regulatory Powers Act, an infringement officer may give a person an infringement notice for contraventions of certain strict liability offences or civil penalty provisions of the Act. The table in subsection 359(1) of the Act lists the provisions of the Act in relation to which an infringement notice may be given.

Item 11 in Schedule 1 to the Bill would insert new item 34A in the table in subsection 359(1) of the Act. This would allow an infringement notice to be given in relation to the strict liability offence in new subsection 397G(6) of the Act. The strict liability offence is outlined in detail in the Overview.

The right of a person to a fair and public hearing by a competent, independent and impartial tribunal is preserved by the Regulatory Powers Act, as its provisions allow a person to elect to have the matter heard by a court rather than pay the amount specified in the infringement notice. Additionally, the Regulatory Powers Act outlines that this right must be stated in an infringement notice issued to a person, ensuring that a person issued with an infringement notice is aware of their right to have the matter heard by a court.

Criminal process rights (Article 14 of the ICCPR)

Article 14 of the ICCPR contains criminal process rights, including the minimum guarantees in criminal proceedings (Articles 14(3) and (5) to (7)). They include the right to the presumption of innocence (Article 14(2)), the right to be free from self-incrimination (Article 14(3)), and the right not to be tried or punished again for an offence for which a person has already been finally acquitted or convicted (prohibition on double jeopardy) (Article 14(7)).

Criminal process rights - civil penalty provisions

Schedule 1 to the Bill would insert a new civil penalty provision into the Act. The civil penalty provision in new subsection 397G(7) relates to the unauthorised use or disclosure of protected information and carries a maximum civil penalty of 240 penalty units. This is outlined in detail in the Overview.

As discussed in the Guidance Note 2: Offence provisions, civil penalties and human rights published by the Parliamentary Joint Committee on Human Rights (PJCHR), civil penalty provisions may engage criminal process rights under Article 14 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a criminal penalty for the purposes of Article 14 of the ICCPR.

Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

The civil penalty provisions in the Act expressly classify the penalties as civil penalties. Those provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The civil penalties aim to deter non-compliance with the Act and would not impose criminal liability and a finding by a court that they have been contravened does not lead to the creation of a criminal record.

The maximum penalty amount that may be imposed by a court as a civil penalty order is 240 penalty units for the civil penalty set out in Schedule 1 to the Bill. Paragraph 82(5)(b) of the Regulatory Powers Act is applied to the Act by section 356 of the Act and provides that the maximum penalties a court may apply to individuals will be those specified in the civil penalty provisions as amended by the Bill. The application of paragraph 82(5)(a) to civil penalties under the Act means that the corporate multiplier will apply to bodies corporate so that a court may set the penalties payable by such entities at no more than five times the penalty specified in the civil penalty provision. The application of the corporate multiplier in Schedule 1 would result in a maximum penalty under new subsection 397G(7) of 1,200 penalty units.

The new civil penalty in Schedule 1 should not be seen as being criminal in nature. The civil penalty in new subsection 397G(7) reflects the significant harm that can occur as a result of unauthorised uses or disclosure of protected information. For the regulatory regime under the Act to be effective, there must be confidence from industry and the general public, that protected information obtained and generated under the Act, will be handled appropriately. The civil penalty in new subsection 397G(7) would only be applied to entrusted persons or other persons who are employed or engaged by the Commonwealth or who perform certain functions or duties, or exercise certain powers, under the Act. By virtue of their roles and responsibilities, these persons can be reasonably expected to be aware of their obligations under the Act relating to the use and disclosure of protected information. The maximum civil penalty of 240 penalty units would also be consistent with a large number of other penalties under the Act, including in subsection 215(3) for carrying out export operations after an export licence has been revoked.

The creation of the new civil pecuniary penalty set out in Schedule 1 to the Bill has been set by reference to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers published by the Attorney-General’s Department (the Guide to Framing Commonwealth Offences). The penalty seeks to reflect the seriousness of the contravening conduct and the harm that can result from the unauthorised use or disclosure of protected information. Consistent with the original setting of penalty amounts, the upper range of the civil penalty amount in this Bill is proposed for contraventions involving aggravated circumstances.

The new penalty in Schedule 1 to the Bill would apply in a regulatory context and should not be considered severe, noting that they are all pecuniary penalties (rather than more severe punishment like imprisonment), there is no sanction of imprisonment for non-payment of penalties. There is also no mandatory minimum penalty, and the court has the discretion to determine the appropriate penalty having regard to all the circumstances of the matter.

Having regard to the severity of the penalty, and the context in which its applied, the new civil penalty in Schedule 1 to the Bill should not be considered as elevating the civil penalties to being criminal in nature under international human rights law. However, even if they could be perceived to be criminal in nature, they would be compatible with the criminal process rights contained in Articles 14 of the ICCPR as the amendments do not affect the court process, just the penalty that can be imposed by the courts. Further details of the specific criminal process rights under Articles 14(2), (3) and (7) are discussed below.

Criminal process rights - fault-based offences

Schedule 1 to the Bill would insert a new fault-based offence into the Act. The fault-based offence in new subsection 397G(5) relates to the unauthorised use or disclosure of protected information and has a maximum penalty of 2 years imprisonment or 120 penalty units, or both. This is outlined in detail in the Overview.

The criminal penalty may engage the criminal process rights contained in Article 14 of the ICCPR in relation to the guarantees of general application to proceedings and guarantees which specifically relate to criminal proceedings. The guarantees specific to criminal proceedings under Article 14 include the right to the presumption of innocence (Article 14(2)), freedom from self-incrimination (Article 14(3)), and the prohibition on double jeopardy (Article 14(7)).

In relation to Schedule 1 to the Bill, the maximum penalty for the fault-based offence in new subsection 397G(5) is consistent with the standard fine to imprisonment ratio in the Guide to Framing Commonwealth Offences and reflects the seriousness of unauthorised uses or disclosures of protected information, which have the potential to cause harm. The maximum penalty would also be consistent with other penalties under the Act, including in subsection 215(2) for carrying out export operations after the revocation of an export licence.

The proposed penalty set out in Schedule 1 to the Bill will provide scope for sentencing courts to address high level offending while maintaining the discretion to impose a lesser penalty for less serious offending conduct. In sentencing an offender and determining the level of penalty to impose for the offence, a court may have regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non-compliance. Sentencing courts will also have the discretion of whether to apply a term of imprisonment, or a financial penalty, or both to reflect the seriousness of the offending. The fault-based offence would be compatible with the criminal process rights contained in Article 14 of the ICCPR. Further details on the specific criminal process rights under Articles 14(2), (3) and (7) are discussed below.

Criminal process rights - strict liability offences

Schedule 1 to the Bill would insert a new strict liability offence into the Act. The strict liability offence in new subsection 397G(6) relates to the unauthorised use or disclosure of protected information and has a maximum penalty of 50 penalty units. This is outlined in detail in the Overview.

In relation to Schedule 1 to the Bill, the maximum penalty for the strict liability offence in new subsection 397G(6) does not exceed 60 penalty units for an individual, which is consistent with the Guide to Framing Commonwealth Offences. Sentencing courts would maintain the discretion to determine the appropriate penalty taking into account the seriousness of the offending conduct. The penalty would only apply to entrusted persons or other persons who are employed or engaged by the Commonwealth or who perform certain functions or duties, or exercise certain powers, under the Act. By virtue of their roles and responsibilities, these persons can be reasonably expected to be aware of their obligations under the Act relating to the use and disclosure of protected information. The unauthorised use or disclosure of protected information by such persons can potentially cause harm and undermine confidence in the integrity of the export control framework.

The strict liability offence in Schedule 1 to the Bill would be compatible with the criminal process rights contained in Article 14 of the ICCPR. Further details on the specific criminal process rights under Article 14(2) are discussed below.

Right to the presumption of innocence (Article 14(2) of the ICCPR)

Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.

Right to presumption of innocence - reversal of burden of proof

The PJCHR Guidance notes that placing the burden on the defendant should be limited to circumstances where the matter is peculiarly within the knowledge of the defendant and where it is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The PJCHR Guidance also notes that a reverse burden provision is more readily justified if the matter in question is not central to the question of culpability for the offence, the penalties are at the lower end of the scale, and the conduct proscribed by the offence poses a grave danger to public health or safety.

Schedule 1 to the Bill proposes to insert a fault-based offence in new subsection 397G(5), a strict liability offence in new subsection 397G(6) and a civil penalty provision in new subsection 397G(7) for the unauthorised use or disclosure of protected information. New subsections 397G(5) to (7) carry a reverse burden of proof. However, the reverse burden in these provisions only applies to a defendant seeking to rely on the exceptions in new subsections 397G(3) and (4) that the use or disclosure of the information was required or authorised by a Commonwealth law or prescribed State or Territory law, or otherwise made in good faith. These matters would be peculiarly in the knowledge of the defendant, as there are a number of authorisations in the Act, across the laws of the Commonwealth, and where relevant, across the laws of a State or Territory. In addition, whether the information was used or disclosed in good faith would also be a matter that would be peculiarly in the knowledge of the defendant. In the event of a prosecution or civil proceedings, it would be significantly more difficult and costly to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. Consequently, in order to effectively safeguard protected information under new section 397G, it is reasonable, necessary and proportionate to reverse the burden of proof and limit the right to the presumption of innocence.

The conduct proscribed by the fault-based offence, strict liability offence and civil penalty provision in new subsections 397G(5) to (7) could potentially cause harm and undermine confidence in the integrity of the export control framework. The proposed penalties in these new provisions are proportionate to achieve the necessary deterrent effect, and the maximum penalty that may be imposed will be determined by a court having regard to all the circumstances of a matter.

Right to presumption of innocence - strict liability offence

The PJCHR Guidance notes that strict liability offences engage and limit the presumption of innocence as they allow for the imposition of criminal liability without the need to prove fault.

When strict liability applies to an offence, the prosecution is only required to prove that the defendant contravened the provision, but not the fault elements of the offence (intention, knowledge, recklessness or negligence) in order for the defendant to be found guilty. However, the defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code). Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and can reasonably be expected that the person was aware of their duties and obligations.

Strict liability offences will not necessarily be inconsistent with the presumption of innocence provided that removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a strict liability provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for an offence being a strict liability offence.

Schedule 1 to the Bill seeks to insert a new strict liability offence in new subsection 397G(6) of the Act, as outlined in detail in the Overview. The strict liability offence in new subsection 397G(6) has a maximum penalty of 50 penalty units, which is consistent with the principles set out in the Guide to Framing Commonwealth Offences. Strict liability is necessary to achieve the legitimate objective of ensuring that protected information is only used or disclosed for authorised purposes. The unauthorised use or disclosure of protected information can lead to harm, including prejudicing the prevention, detection, investigation, prosecution or punishment of offences, or prejudicing the security, defence or international relations of Australia. The actions which trigger the offence, are simple, readily understood and easily defended. The offence is triggered if a person who obtained or generated protected information in the course of, or for the purposes of, performing functions or duties or exercising powers under the Act (or assisting another person in the performance of such functions or duties or the exercise of such powers), uses or discloses the information in circumstances where the exceptions in new subsections 397G(3) and (4) do not apply.

Offences relating to the unauthorised use or disclosure of protected information need to be dealt with efficiently to ensure industry and public confidence in the export control framework, and to reduce the risk of the potentially damaging consequences of unauthorised use or disclosure of protected information. Whether or not the defendant intentionally, recklessly or negligently used or disclosed protected information without a relevant authorisation is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence. The use of protected information plays an important role in ensuring that the Act remains an effective and efficient mechanism to manage biosecurity risks to Australia, while also facilitating trade and implementing Australia’s obligations under the relevant international treaties. If protected information is used or disclosed without authorisation, it may deter other persons from providing such information to the Commonwealth in the future. Further, the persons affected by the strict liability offence would be placed on notice to guard against the possibility of contravention and would be reasonably expected to be well aware of their obligations due the nature of their roles and responsibilities.

Right to presumption of innocence - infringement notices

Under Division 2 of Part 8 of Chapter 10 of the Act and Part 5 of the Regulatory Powers Act, an infringement officer may give a person an infringement notice in relation to an alleged contravention of certain provisions of the Act. The table in subsection 359(1) of the Act lists the provisions of the Act in relation to which an infringement notice may be given.

Schedule 1 to the Bill would insert new item 34A in the table in subsection 359(1) of the Act to have the effect that the strict liability offence in new subsection 397G(6) (as inserted by Schedule 1 to the Bill) is subject to an infringement notice under Part 5 of the Regulatory Powers Act. The strict liability offence and infringement notice scheme is outlined in detail in the Overview. 

An infringement notice may be given for alleged contraventions of provisions specified in the table in subsection 359(1) of the Act, instead of pursuing criminal or civil proceedings. Under paragraph 104(1)(i) of the Regulatory Powers Act, an infringement notice must state that payment of the infringement notice amount is not an admission of guilt or liability. The right to the presumption of innocence is therefore not engaged by the giving of infringement notices. Further, the Regulatory Powers Act allows a person to elect to have the matter heard by a court rather than pay the amount specified in the infringement notice.

Right not to be tried or punished again for an offence for which a person has already been finally acquitted or convicted (prohibition on double jeopardy) (Article 14(7) of the ICCPR)

Article 14(7) of the ICCPR provides that no one shall be liable or be tried or punished again for an offence for which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Article 14(7) may be engaged by provisions that allow for the imposition of both a criminal penalty and a civil penalty provision in relation to the same contravening conduct. Schedule 1 to the Bill seeks to insert new section 397G in the Act, which contains the same contravening conduct (contravention of new subsection 397G(1)) for the fault-based offence in new subsection 397G(5), strict liability offence in new subsection 397G(6) and civil penalty provision in new subsection 397G(7) of the Act.

The civil penalty provisions of the Act create a distinct penalty regime from the criminal sanctions which provide a proportionate and effective mechanism to punish actions that may contravene Australia’s export control laws. The civil penalty provisions cannot be used to impose criminal liability or subject a person to imprisonment and a finding by a court that they have been contravened does not lead to the creation of a criminal record. A court also has the discretion to impose the penalty that the court considers most appropriately reflects the nature and seriousness of the contravening conduct.

Further, under section 88 of the Regulatory Powers Act (as applied by subsection 356(1) of the Act), a court may not make a civil penalty order against a person for a contravention of a civil penalty provision in the Act if that person has been convicted of an offence under an Australian law or the person has been found by a court to have contravened a civil penalty provision under Australian law that is constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

Prohibition on arbitrary interference with privacy (Article 17 of the ICCPR)

Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to this purpose.

Information management

Schedule 1 to the Bill seeks to insert new information management provisions in the Act and provides for new provisions relating to the use and disclosure of relevant information. The amendments in Schedule 1 to the Bill are outlined in detail in the Overview.

New Division 2 of Part 3 of Chapter 11 of the Act (as inserted by Schedule 1 to the Bill) would set out a number of statutory authorisations for the use and disclosure of relevant information. Relevant information may include personal information, and therefore, the use and disclosure of relevant information may engage the prohibition on arbitrary interference with privacy.

The authorisations in new Division 2 of Part 3 of Chapter 11 of the Act are clearly defined and are aimed at the legitimate objective of supporting the management of export control framework and for the effective operation and enforcement of the Act. They include, for example, the use or disclosure of relevant information in the course of, or for the purposes of, the performance of functions or duties, or the exercise of powers under the Act (new section 388), as well as for research, policy development or data analysis to assist the Department (new section 394). They also include the disclosure of statistics (new section 395) and disclosure to a foreign government, an authority or agency of a foreign government or an international body of an intergovernmental character, for the purposes of the export of goods from Australia, managing Australia’s international relations in respect of trade or giving effect to Australia’s international obligations (new section 389).

Other authorisations are properly aimed at assisting with the administration and enforcement of other Australian laws, through use or disclosure of relevant information to a Commonwealth entity (new section 391), to a court or tribunal (new section 392), for law enforcement purposes (new section 393) or to assist in administering State or Territory laws (new section 397C). In addition, there are other authorisations relating to matters of public interest with a high threshold that must be met in order to rely on them, such as where it is necessary to manage a severe and immediate threat that arises in connection with exports or has the potential to cause harm on a nationally significant scale (new section 397D).

The authorisations also include instances where there is no justifiable reason to prevent the use or disclosure of relevant information, such as where the use or disclosure relates to publicly available information (new section 396) or has occurred with the consent of the person to whom the information relates (new section 397A). Similarly, the disclosure of relevant information to the person to whom the information relates (new section 397), or to the person who provided the information (new section 397B) is also justified, as they will have already been aware of the information.

The authorisation in new section 397E would allow the rules to prescribe the use or disclosure of relevant information in other circumstances. This is necessary as circumstances may arise in the future, which may require expedient authorisation to effectively manage the export control framework, and where reliance on another authorisation is not available or appropriate. It is also needed because there are classes of person who only have functions and powers under the various export control rules that are made under the Act. The rules under new section 397E would be able to be tailored to particular circumstances, by prescribing the kinds of information that may be used or disclosed, the classes of persons who may use or disclose the information, and the purposes for the use or disclosure. In addition, the rules would be able to impose appropriate limitations on the use or disclosure of the information, by requiring certain conditions to be complied with. For example, this may include requiring the person who is using or disclosing the information to ensure appropriate protections are in place for any personal information.

Some of the other authorisations also impose specific measures to prevent the sharing of relevant information that may contain personal information. For example, new section 394 requires reasonable steps to be taken to de-identify personal information, wherever possible, before relevant information is disclosed for the purposes of research, policy development or data analysis. New section 395 also allows the use or disclosure of statistics that are not likely to enable the identification of a person. In addition, authorisations such as new sections 393 and 397C will require an agreement to be in place between the Commonwealth and a State or Territory body before the relevant information may be disclosed to the State or Territory body. For example, this may include requiring the State or Territory body to confirm that any personal information that is disclosed will be subject to appropriate safeguards.

For clarity, the second note following new section 387 also explains that nothing in Part 3 of Chapter 11 of the Act would prevent the Commonwealth from making agreements or other arrangements to impose conditions on the use or disclosure of relevant information by a person or body who obtains the information as result of a disclosure authorised under Division 2 of Part 3 of Chapter 11 of the Act. It is intended that additional conditions could be imposed on the use or disclosure of the relevant information, for example, to de-identify any personal information before it can be used in certain circumstances.

Further, to the extent that any of the personal information is also protected information, then it would be afforded additional protections under new section 397G of the Act (as inserted by Schedule 1 to the Bill). Protected information would relate to kinds of information the unauthorised use or disclosure of which would be likely to cause harm. Under new section 397G, a fault-based offence, civil penalty provision and strict liability offence would apply to the unauthorised use or disclosure of protected information which is obtained or generated under the Act. This will afford appropriate protection for the use or disclosure of certain personal information.

Therefore, this limitation to the right to privacy is reasonable, necessary and proportionate to achieving legitimate objectives and is consistent with the right to privacy in Article 17 of the ICCPR.

Fit and proper person test

Under the Act, certain persons are required to provide information or documents for the purposes of the Secretary determining whether the person is a fit and proper person. Requiring persons to provide information or documents may incidentally require the provision of personal information. The collection, use, storage, and disclosure of personal information may engage the right to freedom from arbitrary or unlawful interference with privacy.

 

Participation in Australia’s agricultural export markets is not a right; it is a privilege granted by the Australian Government to suitable persons. A person seeking the benefits of participating in those markets does so in the knowledge that the existence of certain prior conduct or associations may result in the rejection of an application, or suspension, variation or revocation of a registration or other approval (if prescribed by the rules).

 

The amendment in item 31 of Schedule 2 to the Bill would require the Secretary to have regard to certain matters relating to the PILCC Act (discussed in detail above) in determining whether a person is a fit and proper person.

 

A fit and proper person test can be used to consider a person’s history of compliance with legislation and then deny approval to register an establishment, or to suspend, revoke or alter the conditions on an existing approved arrangement. This ensures that persons or companies are suitable entities to be responsible for the appropriate management of relevant risks.

 

Requiring the Secretary to take into account whether the person (or an associate of the person) has been convicted of an offence against or ordered to pay a pecuniary penalty under the PILCC Act is important when considering whether a person is a fit and proper person because such a person might be involved in the export of a wide range of goods, with varying degrees of risk. For similar reasons, whether a debt is due and payable by the person (or an associate of the person) to the Commonwealth under the PILCC Act, and whether the person (or an associate of the person) has contravened those Acts are also important considerations for this assessment. This ensures that the integrity of the regulatory framework is not compromised by limiting conduct that can be considered in this context. As the agricultural export sector is regularly changing and evolving, this is reasonable and proportionate and ensures that the current level of market access can be maintained and possibly even increased in future.

 

Australia’s access to markets and the ability to export agricultural goods depends on its trading reputation and the confidence of its trading partners. To the extent these requirements engage Article 17 of the ICCPR, any interference with privacy is not arbitrary as the requirement to provide information, including for the fit and proper person test, is necessary, reasonable and proportionate for the legitimate objective of ensuring that persons who are involved in exporting goods from Australian territory are trustworthy and demonstrate the required integrity necessary to uphold Australian law and protect our trading reputation. In addition, to the extent that any of the personal information is also protected information, then it would be afforded additional protections under new section 397G of the Act (as inserted by Schedule 1 to the Bill and discussed above).

 

Right to freedom of expression (Article 19 of the ICCPR)

Article 19(2) of the ICCPR protects the right to freedom of expression. This includes the freedom to seek, receive and impart information and ideas of all kinds. Article 19(3) of the ICCPR provides that the right to freedom of expression may be subject to certain restrictions if they are provided by law and necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals. Any such restrictions must be prescribed by law and be reasonable, necessary and proportionate to achieving a legitimate objective.

Information management

Schedule 1 to the Bill would provide for provisions relating to the unauthorised use or disclosure of protected information (new subsection 397G(1)), as explained in the Overview. If a person contravenes new subsection 397G(1), then they are liable to a new fault-based offence, strict liability offence and civil penalty provision in subsections 397G(5) to (7). These provisions may limit the right to freedom of expression to the extent that they impose offences which attract a pecuniary penalty or imprisonment, or impose civil liability on a person, in circumstances where the use or disclosure of protected information is unauthorised.

Protected information is defined in new section 397F of the Act (as inserted by Schedule 1 to the Bill). The limitation on the unauthorised use or disclosure of protected information under new section 397G is necessary to achieve a number of legitimate objectives.

Protected information includes information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of offences. Limiting the unauthorised use or disclosure of such protected information is necessary to achieve the legitimate objectives of protecting public order.

Further, protected information may also include information the disclosure of which could reasonably be expected to prejudice the security or defence of Australia. Limitation of the right to freedom of expression in relation to the unauthorised use or disclosure of such protected information achieves the legitimate objective of protecting national security.

Protected information may also include information the disclosure of which could reasonably be expected to found an action by a person for breach of a duty of confidence, to prejudice the international relations of Australia or the effective working of the Department, or otherwise harm the public interest. These limitations are necessary to ensure confidence from the industry, the general public and foreign countries, that such information, which would be likely to cause harm if disclosed in an unauthorised manner, can be appropriately protected under the Act.

In addition, the civil penalty and offence provisions in subsections 397G(5) to (7) would only apply to entrusted persons or other persons who are employed or engaged by the Commonwealth or who perform certain functions or duties, or exercise certain powers, under the Act. By virtue of their roles and responsibilities, these persons can be reasonably expected to be aware of their obligations under the Act relating to the use and disclosure of protected information.

Even where a person has contravened subsection 397G(1), the civil penalty and offence provisions in subsections 397G(5) to (7) would not apply, where the exceptions in subsections 397G(3) and (4) are enlivened. These exceptions would be where the use or disclosure was required or authorised by a Commonwealth law or a prescribed State or Territory law, or where the use or disclosure was made in good faith.

While the penalty for the fault-based offence in new subsection 397G(5) carries the possibility of imprisonment, a court will have discretion to impose a lesser penalty for offending which falls on the lower end of objective seriousness. A term of imprisonment is intended to be imposed by a court for particularly egregious offending which falls on the higher end of objective seriousness. In accordance with section 17A of the Crimes Act 1914 , a court will still need to consider all other available sentences and be satisfied that no other sentence is appropriate in all the circumstances of the case. Where a court passes a sentence of imprisonment for offending against new subsection 397G(5), the court would be required to state the reasons for its decision and that no other sentence is appropriate.

Given that the unauthorised use or disclosure of protected information may have potentially serious consequences, including harm to a person’s reputation, prejudice to criminal investigations and prosecutions, and prejudice to Australia’s defence and national security, it is important to ensure that protected information is not used or disclosed without appropriate authorisation. For the reasons given above, this limitation on the right to freedom of expression in Article 19 of the ICCPR is necessary, appropriate and proportionate to achieving a legitimate objective.

Right to freedom of association (Article 22 of the ICCPR)

 

Article 22(1) of the ICCPR protects the right to freedom of association with others. Article 22(2) permits limitations which are prescribed by law and which are necessary in the interests of national security, public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This right may be engaged by the requirement to be a fit and proper person which incorporates an assessment of a person’s associates.

 

The amendment in item 31 of Schedule 2 to the Bill would require the Secretary in determining whether a person is a fit and proper person, to have regard to certain matters relevant to the PILCC Act (discussed in detail above) in relation to an associate of the person.

 

Business associates and others may have influence over the primary person such that they may be able to compel them to undertake illegal activities on their behalf, through inducement or other means. The amendments would require the Secretary to consider, as part of the ‘fit and proper test’, whether an associate of the primary person has been convicted of an offence against or ordered to pay a pecuniary penalty under the PILCC Act, has a debt that is due and payable to the Commonwealth under that Act or has contravened that Act, and therefore may pose such a risk. Allowing the Secretary to take this into account when deciding whether a person is a ‘fit and proper person’ for the purposes of certain decisions will ensure Australia’s agricultural exports are not compromised.

 

The fit and proper person test does not prevent or prohibit a person from holding any particular associations. Rather, holding certain associations where risks have been identified in relation to the PILCC Act may mean that a person’s circumstances are not compatible with participation in Australia’s agricultural export markets, which are underpinned by trust. Consideration of a person’s associations is necessary because associates may leverage their personal relationship with the primary person to engage in non-compliant export activities.

 

Importing country requirements relating to agricultural goods will often relate to the preservation of public health. This may pose a risk to public health and safety. Therefore, to the extent that the fit and proper person test limits the right to freedom of association, it is permissible under Article 22(2) as it is for the purpose of protecting public health.

 

Right to work (Article 6 of the ICESCR)

 

Article 6(1) of the ICESCR protects the right of everyone to the opportunity to gain the person’s living by work that he or she freely chooses or accepts. The United Nations Committee on Economic, Social and Cultural Rights (the UNCESCR) has stated that the right to work also encompasses the right not to be unjustly deprived of work. This right may be subject only to such limitations “as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”.

 

The amendment in item 31 of Schedule 2 to the Bill may limit the right to work by further regulating the persons who can participate in the export supply chain for prescribed goods. This is because the amendments require the Secretary to consider whether a person (or an associate of the person) has been convicted of an offence against or ordered to pay a pecuniary penalty under the PILCC Act, has a debt that is due and payable to the Commonwealth under that Act or has contravened that Act.

 

The integrity of Australia’s agricultural export framework is underpinned by appropriate regulatory controls, including who is permitted to perform certain roles within it and who should be granted with certain privileges. Consideration of such matters relating to the PILCC Act is necessary for the legitimate objective of ensuring that persons who are approved to export goods from Australia are persons who are trustworthy and have demonstrated the required attributes necessary to uphold Australia’s trading reputation.

 

The amendments would achieve this by ensuring that persons or companies exporting Australian goods are suitable entities to be responsible for the appropriate management of relevant risks. This will uphold the integrity of our agricultural export framework and ensure the integrity of goods proposed for export across the entire supply chain. The high standards required of the entities participating in the export process places certain limitations on the right to work, however it does so in a way that is not arbitrary and is necessary and proportionate for our trading partners’ continued confidence.

Conclusion

This Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Senator the Hon. Murray Watt

Minister for Agriculture, Fisheries and Forestry