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Agricultural and Veterinary Chemicals (Administration) Amendment Bill 2004

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2002-2003-2004

 

 

 

 

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION) AMENDMENT BILL 2004

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

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





TABLE OF CONTENTS

 

ABBREVIATIONS ...................................................................................................... 2



OUTLINE ...................................................................................................................... 3



FINANCIAL IMPLICATIONS ................................................................................... 4



AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION) AMENDMENT BILL 2004 5



Schedule 1:  Amendment Of The Agricultural And Veterinary Chemicals (Administration) Act 1992        5

 



ABBREVIATIONS

 

The following abbreviations are used in this explanatory memorandum.

 

Administration Act

Agricultural and Veterinary Chemicals ( Administration) Act 1992



Department

The Australian Government Department of Agriculture, Fisheries and Forestry



NRA

National Registration Authority for Agricultural and Veterinary Chemicals



Rotterdam Convention

Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade



Secretary

The Secretary to the Australian Government Department of Agriculture, Fisheries and Forestry



Stockholm Convention

Stockholm Convention on Persistent Organic Pollutants

 



AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION) AMENDMENT BILL 2004

 

OUTLINE

 

The Agricultural and Veterinary Chemicals (Administration) Amendment Bill 2004 amends Part 7A of the Agricultural and Veterinary Chemicals (Administration) Act 1992 , which deals with importation, manufacture and exportation of chemicals .  Section 69C of Part 7A was originally included in the Administration Act in 1993 to meet expected international obligations on import, manufacture or export of active constituents or chemical products. 

 

In August 2003, the Government announced that it had initiated the ratification process of two treaties on management of chemicals - the Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention) and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention) .  Both conventions oblige Australia to undertake certain acts in relation to pesticides, their importation, exportation, manufacture and use; and also establish certain provisions for the collection and use of information. 

 

Consequently, the Administration Act is amended to meet the obligations of the Stockholm Convention and the Rotterdam Convention.  Provisions have been extended to include manufacture, use and other dealings to meet obligations under both conventions.  In drafting these amendments, it became apparent that there was a gap in the capacity to satisfy the information requirements of the agreements.  In addressing these concerns, amendments to information collecting provisions will make it very clear which international agreement, which chemical and what information is sought to meet international reporting obligations.

 

It also became apparent that the information on those chemicals that were under consideration for listing in the international agreements could not be sought.  It is important that Australian deliberations into the consideration of new information should be fully informed of the Australian circumstances in order to protect those pesticides that are important to Australia.  The information requirement provisions have been expanded to meet all information obligations relating to current and future international agreements.  This information requirement provision includes those that are of importance to Australia’s chemical management, but not yet in force for Australia or agreements that are still in the negotiation phase.  The information collected will assist Australian deliberations on the chemical and/or international agreement.  Actual requirements will be specified in the Agricultural and Veterinary Chemicals (Administration) Regulations for each chemical.  Information cannot be sought under the regulations for chemicals that are not associated with an international agreement; it is not a catch-all information seeking provision.

 

Some restructuring of the original provisions has been carried out to provide greater clarity as to the intent of the provisions.

 

The Amendments provide new penalties for not supplying required information or for supplying false or misleading information.  There is also a requirement to keep records for six years if that information relates to import, manufacture, use, dealing or export.



 

FINANCIAL IMPLICATIONS

 

The amendments in this Bill will have minimal financial impact on the Commonwealth budget.

 

The Bill will have minimal financial impact on industry.  Introduction of information requirements and the inclusion of manufacture, use and other dealings are to meet convention obligations or expected obligations and will be limited to only that information that is required for the specified chemical in the specified international agreement. 

 

Industry is already obliged to keep records and provide data and information to the NRA.  Industry must also retain records for the purpose of annual returns to the NRA.  This Bill extends these known and practised obligations to the terms of both conventions.

 



AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION) AMENDMENT BILL 2004

 

Notes on clauses

 

Clause 1:  Short Title

 

1.         The short title of the Act is the Agricultural and Veterinary Chemicals (Administration) Amendment Act 2004.

 

Clause 2:  Commencement

 

2.         This section provides for the Act to commence on the day after the day on which it receives Royal Assent. 

 

Clause 3:  Schedules

 

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

 

SCHEDULE 1:  AMENDMENT OF THE AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION) ACT 1992

 

Clause 1 - After section 69B

 

10.1This clause inserts four new sections after section 69B.  Information provisions have been removed from section 69C and extended in these new sections.  These amendments relate to international agreements or arrangements that impact on chemical management and would be applicable to such agreements as the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade and the Stockholm Convention on Persistent Organic Pollutants .

 

10.2Two sections (sections 69CA and 69CB) relate to supplying information on importation into Australia, manufacture or use, other dealings with and exportation from Australia of prescribed chemicals and products. 

 

10.3The third section (sections 69CC) allows for the gathered information to be provided by the relevant agency to a country, an appropriate authority in a country or to a relevant international organisation to comply with obligations under international agreements concerning the movements into or out of Australia, manufacture of, use of or other dealings with prescribed chemicals.  In providing this information, the relevant agency should take into account the interest of a person in maintaining confidentiality in relation to their information. 

 

10.4The fourth section (sections 69CD) introduces offence provisions relating to the supply of information. 

 

69CA Providing information about certain chemical products etc. to comply with international agreements

 

1.5       Section 69CA allows regulations to be made to ensure compliance with information provisions of international agreements or arrangements. 

 

Regulations may prescribe international agreements

 

1.6       Subsection (1) allows regulations to be made relating to specific international agreements, such as the Rotterdam Convention and the Stockholm Convention and any future relevant agreement to which Australia is a party. 

 

Regulations may prescribe information about import etc. of certain chemicals

 

1.7       Subsection (2) outlines the information that may be prescribed to ensure that Australia can comply with the relevant international agreement or arrangements.  Information under this subsection relates only to those chemicals included in international agreements to which Australia is a party. 

 

1.8       The information must be prescribed in the regulations for each specified chemical or chemical product that is within the scope of the international agreement.  The information sought will be limited to what is required for Australia to meet the obligations of the international agreement; not all information will be required for all specified chemicals. 

 

1.9       Only those persons carrying out the specified activity will be required to provide the information; nil returns will not be necessary.

 

10.1Subsection (3) requires that the regulations identify the relevant international agreement for each specified chemical.



A person must provide prescribed information about prescribed constituents or products



10.2Subsection (4) requires any person who imports, manufactures, uses, deals with or exports a chemical specified in the regulations to provide the prescribed information. 



10.3Note 1 indicates that failure to provide the specified information or providing false or misleading information may be an offence. 



10.4Note 2 notes that section 69C may impose restrictions on import, manufacture, use, dealing or export on the specified chemical. 



10.5Subsection (5) provides that the information that must be provided to the relevant agency (defined in new section 69EAA as the Department or the NRA) is provided in an approved form within the timeframe, which will be specified in the regulations.  For the Stockholm and Rotterdam Conventions, the relevant agency will be the Department.  The format in which the information should be provided will be set out in a form approved by the Secretary or prescribed by the regulations.



Regulations may commence when agreement or arrangement enters force

 

10.6Subsection (6) provides for a regulation made for the purposes of this section to come into force when the relevant international agreement comes into force for Australia, but not before that time.

 

10.7Following the ratification of an international agreement by Australia, there is usually a period of time (90 days) before the agreement is binding and obligations have to be met.  This subsection allows the regulations to be made and be ready for when the agreement enters into force for Australia. 

 

69CB Providing information about certain chemical products etc. under international consideration

 

10.8Section 69CB allows regulations to be made to seek information on an active constituent or prescribed chemical products relating to international agreements for which Australia does not have obligations at the time the information is sought. 



10.9This section outlines the various circumstances when the required information may be gathered and thereby inform Australia’s deliberations.  Australian deliberations will relate to an additional chemical being proposed for inclusion in an international agreement to which Australia is a party; or where an international agreement is not yet in force for Australia; or the agreement is still in the negotiation phase, but is of importance to Australia’s chemical management.



Regulations may prescribe constituents and products



10.10Subsection (1) provides for regulations to prescribe the active constituent or chemical products that are the subject of international agreements and for which Australia may not yet have international obligations.

 

10.11Paragraph (1)(a) provides for regulations to identify a constituent or product that is the subject of an international agreement that has not entered into force for Australia.  Such a circumstance may arise when an interim arrangement is in force.  This is the case with the Rotterdam Convention, where the signatories to the convention have acted, to various degrees, to fulfil the convention obligations in the period between the convention opening for signature and entry into force following 50 ratifications, a period of over five years. 



10.12Paragraph (1)(b) provides for the regulations to prescribe a constituent or product that is under consideration.



10.13Subparagraph (1) (b) (i) provides for the regulations to prescribe a constituent or product that is under consideration by an international organisation, or a subsidiary body to an international organisation, or by Australia together with any other country.  It also allows the prescribing of a bilateral agreement.  Such a circumstance may arise when an additional chemical is being considered for addition to the list of chemicals under the scope of the convention, or is the subject of a bilateral agreement.



10.14Subparagraph (1) (b) (ii) specifies that the consideration of the chemical is by an international agreement that has not entered into force for Australia, or an international agreement in its negotiating phase.  Such a circumstance would arise when Australia was determining whether to participate in such an agreement or was participating in the negotiation of the text of a new international agreement.

 

Regulations may prescribe information about import etc. of such constituents or products

 

10.15Subsection (2) identifies the information that may be prescribed in the regulations in respect of a prescribed constituent or product, similar to subsection 69CA (2). 

 

10.16This information will only be sought for any chemical where relevant to the specified international agreement.  Such information may be sought for chemicals or products whether or not Australia has legal obligations to provide this information.  Such information will inform Australia’s contribution to that consideration by the relevant international agreement.  Such information may inform Australia’s negotiating position as was the case in the inclusion of a specific exemption included in the Stockholm Convention for ongoing use of mirex as a termiticide.

 

Constitutional basis for this section

 

10.17Subsection (3) identifies the limits on the source of the information which may be sought in paragraphs (2)(b) and 2(c) to certain acts of manufacture, use or other dealing with, a constituent or product.

 

A person must provide prescribed information about prescribed constituents or products

 

10.18Subsection (4) requires any person who imports, manufactures, uses, deals with or exports, an active constituent or chemical product prescribed in the regulations in the circumstances outlined in subsection (3), to provide the prescribed information. 

 

10.19Only those persons carrying out the specified activity must provide the prescribed information; nil returns will not be necessary. 

 

10.20The Note indicates that a person’s failure to provide the information, or providing false or misleading information, may result in the person committing an offence under section 69CD.

 

10.21Subsection (5) provides that the information prescribed for the active constituent or product must be provided to the relevant agency (defined in section 69EAA as the Department or the NRA) within the timeframe prescribed in the regulations. 

 

10.22The information must be provided by means of an approved form.

 

69CC Relevant agency to provide information to other countries

 

10.23Section 69CC gives the relevant agency, which is defined as the Department or the NRA, to give information regarding movements into/out of Australia, the manufacture of, or use of, or any other dealing with a constituent or product that is prescribed for the purposes of section 69CA or section 69CB (subsection (1)) to the appropriate authority of a relevant country, or a relevant international organisation. 

 

10.24In providing the information, the relevant agency may take into account the terms of the international agreement or arrangement and the interests of any person in maintaining the confidentiality relevant to the relevant information.

 

69CD Offences relating to providing information under sections 69CA and 69CB

 

1.34     Section 69CD creates offences relating to providing information, either failing to provide or providing false or misleading information under sections 69CA and 69CB. 

 

Offence for failing to provide information

 

1.35     Subsection (1) identifies the circumstance where a person commits an offence by not providing the information as required.  A penalty of 50 penalty units applies.

 

1.36     Strict liability applies to the physical element of circumstances that the information is required to be provided under sections 69CA and 69CB (subsection (2)).

 

1.37     The Note indicates to see section 6.1 of the Criminal Code for strict liability .

 

Offence for false or misleading information

 

1.38     Subsection (3) creates an offence that applies to the provision of false or misleading information relating to chemicals of concern to international agreements and consideration of an agreement under sections 69CA and 69CB and prescribed in the regulations.  The penalty is 300 penalty units.

 

1.39     Where a person gives, either oral or written information, to the relevant agency, knowing it to be false or misleading, or produces a document to the relevant agency knowing the document to be false or misleading without indicating the deficiencies of the document to the relevant agency or correcting the information (if in possession of, or can reasonably acquire, the correct information), that person commits an offence. 

 

1.40     Controls on exports will be implemented under the regulations and a strong deterrent is imperative to prevent the providing of false or misleading information.  This is essential as the falsehood would probably only be discovered after export and it is important that hazardous chemicals are not sent to countries that do not have the ability to deal with them.   

 

1.41     Offence provisions will only come into force once regulations have been made.  There are no current regulations that will be impacted by the introduction of these offence provisions.

 

1.42     Subsection (4) indicates that the fault element is recklessness with recklessness defined in the Criminal Code.

 

1.43     Strict liability applies to the physical element of circumstances that the information is required to be provided under sections 69CA and 69CB (subsection (5)).

 

1.44     The Note indicates to see section 6.1 of the Criminal Code for strict liability .

 

Clause 2 - Subsection 69C(1)

 

Regulations may prohibit import etc of certain chemical products under international agreements

 

2.1       Subsection 69C(1) is repealed and substituted.  The subsection extends the original provisions to include the use of the constituent or product or any other dealing with the constituent or product.  ‘Use and any other dealing with’ are inserted into the list of activities for which regulations may be made, to enable control of an active constituent or chemical product when such a requirement is necessary under a specified international agreement or arrangement.  This provides for greater clarity of the intent of the subsection.   

 

2.2       The heading of section 69C is replaced to more clearly reflect the purpose of the section to prohibit import, manufacture, use or export of certain chemical products under international agreements.

 

Clause 3 - Subparagraph 69C(2)(a)(iii)

 

3.1       Subparagraph 69C(2)(a)(iii) is repealed.  Information provisions are now included in the new sections 69CA and 69CB.

 

3.2       A heading has been given to subsection 69C(2) to provide greater clarity.

 

Clause 4 - After subsection 69C(2)

 

4.1       New subsection (2A) provides for regulations made for the purposes of subsection (1) to come into force when the relevant international agreement or arrangement comes into force for Australia, but not before that time. 

 

4.2       Following the ratification of an international agreement by Australia, there is usually a period of time (90 days) before the agreement is binding and obligations have to be met.  This subsection allows the regulations to be made and be ready to come into effect when the agreement enters into force for Australia. 

 

Clause 5 - Subsections 69C(3) and (4)

 

5          These subsections are repealed.  Information provisions are included in the new sections 69CA and 69CB.

 

Clause 6 - Paragraph 69C(5)

 

6.1       The provisions of subsection (5) are expanded by the inserting ‘use, deal with’.  A person must not undertake certain acts in contravention of a condition or restriction prescribed by the regulations.  A penalty of 300 penalty units will apply to an offence under subsection (5).

 

6.2       A heading is given to subsection 69C(5) to provide a descriptor of the purpose of the subsection.

 

Clause 7 - Subsection 69C(6)

 

7          The subsection is repealed.  The definition is included in the new section 69EAA.

 

Clause 8 - After subsection 69EA(1)

 

Records relating to import etc. of chemical products prescribed under section 69CA, 69CB

or 69C

 

8.1       Australia will require certain information to comply with the provisions of sections 69CA, 69CB and 69C.  Subsection (1A) provides that a person who imports, exports, manufactures, uses or deals with an active constituent or chemical product must keep any relevant records as evidence of those acts for six years.  The records are those records that enable the Department to ascertain whether the relevant sections relating to international agreements have been complied with.



10.1A penalty of 30 units applies for not keeping and retaining the relevant records.



10.2A heading is provided to subsection 69EA(1) to provide a descriptor of the intent of the provision.

 

Clause 9 - Subsection 69EA(2)

 

9.1       This amendment provides that the offence introduced in paragraph (1A) is an offence of strict liability.



9.2       A new heading of ‘Strict liability’ is given to subsection 69EA(2).

 

Clause 10 - At the end of Division 2 of Part 7A

 

69EAA Definitions

 

10.1A new section, 69EAA, providing for definitions is inserted.  Two new definitions are included and one definition is inserted having been moved from section 69C (6).

 

10.2The new definition of approved form means a form which has been approved by the Secretary or prescribed in the regulations.

 

10.3     The new definition of deal with active constituent or chemical product includes the act of supply or otherwise dispose of the constituent or product.

 

10.4     The definition of relevant agency , repealed in clause 7, is inserted into this new section of definitions.  The definition is unchanged.