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1998-1999-2000
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AGRICULTURE, FISHERIES AND
FORESTRY LEGISLATION
AMENDMENT BILL (NO 1) 2000
EXPLANATORY MEMORANDUM
(Circulated by Authority of the Minister for Agriculture,
Fisheries and Forestry,
the Hon Warren Truss MP)
ISBN: 0642 438854
AGRICULTURE, FISHERIES AND
FORESTRY LEGISLATION AMENDMENT BILL (NO 1) 2000
GENERAL
OUTLINE
Schedule 1 - Amendment of the Quarantine Act
1908
The amendments to the Quarantine Act 1908 clarify that
sections 6C and 14A extend to both the regulations and Proclamation; clarify
that a person may be appointed under section 9AA to be both a quarantine officer
plants as well as a quarantine officer animals; recognise that quarantinable
pests and quarantinable diseases may themselves be matters of quarantine concern
and confirm that for the purposes of section 46A of the Act, offences against
the laws of a State or Territory (in addition to offences against the laws of
the Commonwealth) may be relevant to a person’s suitability to manage a
place where goods subject to quarantine may be treated or otherwise dealt with.
The amendments also allow directions to be given to the person in control of a
vehicle under section 48AB of the Act; clarify that arrangements under section
46A and 66B of the Act may extend to vessels and allow seizure notices to be
given to consignees under section 68 of the Act. A new Part VA is introduced
into the Act by the amendments to cater for the use of an automated electronic
system for the quarantine clearance of goods.
Schedule 2 -
Amendment of the Australian Wine and Brandy Corporation Act 1980
The
proposed amendments to the Australian Wine and Brandy Corporation Act 1980
(the AWBC Act) are to sections dealing with voting arrangements at the
Australian Wine and Brandy Corporation's Annual General Meeting.
They
ensure consistency in voting arrangements for both payers of the wine grapes
levy and payers of the wine export charge.
When the Wine Export Charge
Act 1997 came into force some sections of the AWBC were inadvertently not
amended thus creating anomalies between the voting rights of payers of the wine
grapes levy and of the wine export charge.
FINANCIAL IMPACT
STATEMENT
There will be no financial impact on the
Commonwealth.
NOTES ON
CLAUSES
Clause 1: Short title
This clause provides
that the amending Act may be cited as the Agriculture, Fisheries and
Forestry Legislation Amendment Act (No 1) 2000.
Clause 2:
Commencement
Clause 2 specifies when that the Act will commence on a day
or days to be fixed by Proclamation, except item 8 of Schedule 2 which is taken
to have commenced on the day on which the Public Employment (Consequential
and Transitional) Amendment Act 1999 received Royal Assent. Clause 2 also
provides that if a provision of the Act does not commence by Proclamation within
a period of 6 months beginning on the day the Act receives the Royal Assent, the
provision commences on the first day after the end of that
period.
Clause 3: - Schedules
Clause 3 specifies that subject
to clause 2, each Act that is specified in a Schedule to the Bill 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.
Clause 4.:- Application provision – approval of places
for treating goods
Clause 4 provides that the amendments made by items 7
and 8 of Schedule 1 apply to applications for approvals made after the
commencement of this section.
Clause 5:- Application provision –
detaining goods
Clause 5 provides that the amendment made by item 11 of
Schedule 1 applies to goods ordered into quarantine after the commencement of
this section.
Clause 6:- Saving and validation of
appointments
Clause 6 saves appointments made under section 9AA of the
Quarantine Act 1908 which were made before the commencement of clause.
In addition, clause 6 validates the appointments of a person to be both a
quarantine officer (animals) and a quarantine officer (plants) which have
occurred under section 9AA before the commencement of the clause.
Clause 7:- Validation of agreements
Clause 7 validates
agreements made under section 66B of the Quarantine Act 1908 which have
been entered into before the commencement of this clause in respect of
vessels.
SCHEDULE 1 - QUARANTINE
Quarantine Act
1908
Item 1 Section 6C
This item
inserts the phrase “the regulations or a Proclamation under this
Act” in section 6C of the Act. The purpose the insertion is to clarify
that section 6C of the Act applies not only to a provision of the Act, but also
to provisions of the regulations or a Proclamation.
Item 2 Subsection 9AA(3)
This item substitutes a new
subsection 9AA(3). The purpose of this amendment is to put beyond doubt that a
quarantine officer can be appointed to be either a quarantine officer (animals)
or a quarantine officer (plants), or to be both a quarantine officer (animals)
and a quarantine officer (plants).
Item 3 Subsection 9AA(4)
As a consequence of the amendment to subsection 9AA(3), this item
substitutes a new subsection 9AA(4). The new subsection 9AA(4) is rewritten to
make it clear that a quarantine officer may be appointed, in a single instrument
to divisions of both animal and plant quarantine.
Item 4 Subsection
14A(1)
This item amends subsection 14A(1). The effect of this
amendment is to allow the Minister to grant exemptions from provisions of the
Proclamation. Subsection 14A(1) in its present form allows exemptions to be
granted only from provisions in the Act and regulations.
This item inserts a new paragraph (ba) in subsection 18(2). Subsection
18(2) specifies when goods are subject to quarantine. At present, all goods
infected with a quarantinable disease or quarantinable pest are subject to
quarantine under subsection 18(2). This amendment removes an inconsistency by
making the quarantinable diseases and quarantinable pests themselves
‘goods’; and specifying that they also subject to quarantine. When
goods are subject to quarantine they are under quarantine control. This control
may include directions about the movement and treatment of the goods. A disease
or pest is a quarantinable disease or a quarantinable pest if it has been
declared as such by the Governor General, by Proclamation. Generally, pests and
diseases are declared as quarantinable diseases and quarantinable pests if they
are not established in Australia.
Item 6 After subsection
35(1)
This item inserts a new subsection into section 35. New
subsection 35(1AAA) extends section 35 to cover the order into quarantine of
quarantinable pests or quarantinable diseases. At present, section 35 applies
only to goods infected with a quarantinable pest or a quarantine disease. This
amendment is consistent with the amendment made to subsection 18(2) of the Act.
Item 8 Subparagraph 46A(4)(f)(iii)
Item 9 Subparagraph
46A(9)(f)(iii)
These items amend section 46A so that information
about offences against prescribed State and Territory laws may be sought from an
applicant and taken into consideration by the Director of Quarantine when
granting an approval or suspending or revoking approvals under the section. At
present, section 46A is limited to Commonwealth laws. Section 46A, along with
section 66B, provides the framework for industry to participate in quarantine
activities. Section 46A (including section 46A as amended) does not affect the
operation of Part VII of the Crimes Act 1914 (which includes provisions
that, in certain circumstances, relieve persons from the requirement to disclose
spent convictions and require persons aware of such convictions to disregard
them).
Item 10 At the end of section 46A
This
item amends section 46A by adding a definition of ‘goods’. The
definition clarifies that for the purposes of section 46A, ‘goods’
includes a vessel and states that this definition does not affect the meaning of
‘goods’ in other provisions of the Act. This amendment confirms
that vessels can be treated or otherwise dealt with at places approved under
section 46A. Under the Quarantine Act 1908, the term
‘vessel’ includes ships and aircraft.
Item 11 Paragraph
48(1)(a)
This item substitutes a new paragraph 48(1)(a). The effect
of this amendment is to allow a quarantine officer to direct that goods are to
be detained at the premises where they are located at the time the direction is
given. In its present form, paragraph 48(1)(a) only allows goods to be detained
where they are located at the time if the direction is given when the goods are
located on board a vessel or installation.
This item substitutes a new subsection 48AB(3). The effect of this new
subsection is to allow directions to be given to the person in control of the
vehicle. In its present form, the subsection only allows directions to be given
to the owner of the vehicle. This is impractical as the person in control of
the vehicle may not be the owner and searching for the owner could interfere
with timely and effective management of the quarantine risk. The notion of
giving directions to the person in control of goods, vessels and vehicles is
well established in the Quarantine Act 1908 and this amendment brings
section 48AB into line with the rest of the Act.
This item inserts a new subsection in section 48AB. The new subsection
recognises the quarantine risk arising from the exposure of a vehicle to a
quarantinable disease or quarantinable pest and allows a quarantine officer to
give a direction to the owner of or person in control of the vehicle to treat it
in the manner stated in the direction. A disease or pest is a quarantinable
disease or a quarantinable pest if it has been declared as such by the
Governor-General, by Proclamation. Generally, pests and diseases are declared
as quarantinable diseases and quarantinable pests if they are not established in
Australia.
This item inserts a new subsection in section 48AB. The new subsection
recognises the quarantine risk arising from the exposure of premises to a
quarantinable disease or a quarantinable pest. At present, a quarantine officer
may only direct treatment of premises if the premises have been exposed to an
animal or plant when the animal or plant was subject to quarantine.
This
amendment will ensure that there is power under the Quarantine Act 1908
to direct the treatment of premises where, for instance, the premises, as a
result of exposure from an animal or plant no longer subject to quarantine,
become infested with a quarantinable disease or pest.
This item inserts a new section 56 in a new Part VA. This new Part
introduces legislation to support the automation of clearance procedures for
goods on arrival in Australia. At present, the Quarantine Act 1908
(the Act) contemplates that a person, such as a quarantine officer, will
issue notices facilitating the clearance of goods. These amendments will allow
such notices to be generated by a suitably programmed computer.
New
subsection 56(1) specifies that an electronic notice (as defined in subsection
56(11)) under the section may be given to a person who has imported goods that
have not been released from quarantine, or the agent of such a person.
New subsection 56(2) sets out what the notice given under subsection
56(1) may do. This section also recognises that a notice ordering goods into
quarantine will not, of itself, progress clearance of the goods. Accordingly,
the section requires that a notice ordering goods into quarantine must include
the doing of one or more of the things mentioned in paragraphs (c) to (f).
New subsection 56(3) provides that where a notice is given to a person
under subsection (1), the Director of Animal and Plant Quarantine is taken to
have given the notice.
New subsection 56(4) is intended to ensure the
integrity of the computer program underpinning the issuing of the electronic
notices for the purpose of ordering goods into quarantine. It provides that the
Director of Animal and Plant Quarantine must take all reasonable steps to ensure
that the computer program does not result in electronic notices ordering goods
into quarantine unless there are reasonable grounds to believe that there is an
unacceptably high level of quarantine risk in respect of the goods. This
requirement mirrors the test which a quarantine officer would have to apply in
ordering the goods into quarantine under, for example, section 44C of the
Act. The term “level of quarantine risk” is defined in section
5D of the Act.
New subsections 56(5) and 56(6) create offences for
contravening a requirement in a notice given under subsection 56(1).
In
relation to both offence provisions, the requirement for the person to be
‘given’ the notice in subsection 56(1) will protect a person from
being prosecuted if they haven’t received the notice. ‘Given’
has been interpreted by the courts as essentially requiring service of the
notice on the relevant person. If the electronic notice is lost or sent to the
wrong person, the intended recipient remains unaware of the notice and therefore
has not been ‘given’ the notice.
Subsection 56(7) provides
that an electronic notice given under section 56 may vary or revoke an earlier
electronic notice given under the section. This subsection recognises that for
a range of reasons, a notice may need to be varied or revoked. For example,
additional information may be provided by the importer which changes the type of
treatment the goods should be required to undergo.
Subsection 56(8)
provides that if an electronic notice is inconsistent with an earlier electronic
notice, the earlier notice is of no effect to the extent of the inconsistency.
This provision will ensure that there is a uniform approach taken to reconciling
any inconsistent notices generated by the computer. This provision anticipates
an event that is likely to occur infrequently. However, if it does occur, the
problem can be handled expeditiously by applying this rule.
Subsection
56(9) provides that section 56 is in addition to any power of a quarantine
officer under the Act. This subsection confirms that the arrangement set up
under section 56 does not have any effect on the existing powers of quarantine
officers under the Act.
Subsection 56(10) provides that where an order
or direction given by a quarantine officer under the Act is inconsistent with an
electronic notice under section 56, the notice is, to the extent of the
inconsistency, of no effect. This provision has been inserted to cover the
situation where a quarantine officer on the spot (who may or may ot be aware
that an electronic notice has been issued, or, if he/she does know that an
electronic notice has been issued, may not know what the notice contains) gives
a direction which is inconsistent with the electronic notice. This situation
might arise where a truck driver is, as the agent of the person who received an
electronic notice, carrying imported oranges to a certain fumigation depot in
accordance with the notice. A quarantine officer undertaking a spot check on
the vehicle might consider that the oranges are not being carried in a secure
manner and give a new direction to the truck driver to take the oranges to a
different (closer) fumigation depot.
Section 56(11) provides that for
the purposes of section 56, the term ‘electronic notice’ means an
electronic notice generated as a result of the operation of a computer program
under the control of the Director of Animal and Plant Quarantine.
This item extends the definition of ‘infected goods’ in
subsection 66AA(5) to cover the concept, outlined in Item 5, that quarantinable
pests and quarantinable diseases may also be ‘goods’ in themselves.
The new subparagraphs 66AA(5)(ba) and (bb) mirror the approach taken to
‘goods infected with a quarantinable disease or a quarantinable
pest’ in paragraphs 66AA(5)(a) and (b) of the Act.
This item makes an amendment to subparagraph 66AE(2)(a)(iii). The
substituted words make subparagraph 66AE(2)(a)(iii) consistent with subparagraph
66AB(1)(a)(iii). The existing words had the unintended effect of only allowing
entry to premises if there is full compliance with the procedures under a
compliance agreement. This was an unintended outcome that defeated the purpose
of the entry powers.
Item 18 Subsection 66B(8)
Item 19
At the end of section 66B
These items amend section 66B and
mirror the amendments made to section 46A (see item 10). They have the effect
of confirming that compliance agreements can be entered into in connection with
vessels.
This item extends paragraph 68(4)(a) so that a notice for the purposes of
the section may be given to a consignee. Currently the notice may be given only
to an importer. In respect of mail, in particular, the person who is the
addressee (or consignee) on the mail item may not be the importer in the normal
sense of the word, and there may be no other person in Australia who has an
interest in the mail item. This amendment will enable the notice requirements
of section 68 to be satisfied by giving the notice to the consignee, even if
they are not the importer.
SCHEDULE 2 - WINE AND
BRANDY
Australian Wine and Brandy Corporation Act
1980
Item 1 Subsection 29U(2)
This item proposes to
add the words "wine export charge" in order to apply to trusts and partnerships
the same rules on payment for both the wine grapes levy and the wine export
charge.
Item 2 Subsection 29U(2)
This item proposes to add
the words "or charge" in order to apply to trusts and partnerships the same
rules on payment for both the wine grapes levy and the wine export
charge.
Item 3 Section 29Z
It is proposed to repeal this
section and incorporate rules for voting at Annual General Meetings (AGMs) into
the Australian Wine and Brandy Corporation (Annual General Meeting of the
Industry) Regulations 1999. Items 5-7 propose to ensure that there is
appropriate power to make regulations on voting at AGMs.
Item 4
Section 29ZA
This item proposes to reference the existing
requirements in the Primary Industries (Customs) Charges Act 1999 which
permit the Australian Wine and Brandy Corporation to make
recommendations, under certain conditions, to the Minister on the rate of the
wine export charge.
Item 5 At the end of subparagraphs 46 (1)(a)(i),
(ii) and (iii)
This item proposes to add "and" after each
subparagraph to ensure that all the listed items are included in
regulations.
Item 6 After subparagraph 46(1)(a)(iv)
This
item proposes to add the power to make regulations on the method of determining
votes that an eligible producer may cast at AGMs thus allowing 29Z(1) to be
replaced by regulation.
Item 7 At the end of paragraph
46(1)(a)
This item proposes to add the power to make regulations on
the confidentiality of voting thus allowing 29Z(2) to be replaced by
regulation.
Public Employment (Consequential and Transitional)
Amendment Act 1999
Item 8 Item 277 of Schedule
1
This item proposes to omit "a Department of the Commonwealth" and
substitute "an Agency" thus correcting an earlier misdescribed amendment to the
Australian Wine and Brandy Corporation Act 1980.