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2004 - 2005 - 2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION
AMENDMENT (EXPORT CONTROL AND QUARANTINE) BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,
the Hon Peter McGauran MP)
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AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION
AMENDMENT (EXPORT CONTROL AND QUARANTINE) BILL
2006
OUTLINE
The purpose of the Agriculture, Fisheries and Forestry Legislation Amendment
(Export Control and Quarantine) Bill 2006 (`the Bill') is to amend the Quarantine Act
1908 (`the Quarantine Act') and the Export Control Act 1982 (`the Export Control
Act') in order to:
· provide a legal basis for the recovery of fees for quarantine services provided
under the Quarantine Act to other Commonwealth bodies;
· inserts a definition for `fish';
· extend the definition of `preparation' to the catching of fish and the definition
of `premises' to places in and on water in the Export Control Act;
· clarify the use of certain terms in the Export Control Act;
· create four new offences in the Export Control Act to enable the
Commonwealth to prosecute those people who fail to prepare goods that are
exported in accordance with the Act; and
· extend the services for which fees may be charged under the Export Control
Act to services provided by the Secretary or the Secretary's delegate.
FINANCIAL IMPACT STATEMENT
The Bill is not expected to have any financial impact.
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NOTES ON CLAUSES
Section 1: Short Title
1. Section 1 provides that the Bill, once enacted, may be cited as the Agriculture,
Fisheries and Forestry Amendment (Export Control and Quarantine) Act 2006.
Section 2: Commencement
2. Section 2 provides that sections 1 to 3 of the Bill commence on the day on which
the Act receives Royal Assent; Schedule 1 commences on the 28th day after the
day on which the Act receives Royal Assent and Schedule 2 commences the day
after the Act receives Royal Assent.
Section 3: Schedule(s)
3. Section 3 provides that each Act that is 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amended or repealed as set out in the applicable items in the Schedule concerned,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.
Schedule 1 - Amendment of the Export Control Act
NOTES ON ITEMS
Item 1
4. Item 1 inserts a new definition in section 3 of the Export Control Act to define the
word `fish'. This definition is necessary as a result of the extension of the
definition of `preparation' to include `fish'. The definition extends beyond the
normal meaning of fish to include all aquatic vertebrates such as crocodiles and all
aquatic invertebrates such as prawns, mussels and scallops.
Item 2
5. Item 2 extends the definition of `premises' in section 3 of the Export Control Act
to clarify that the definition includes places in or on water. This extension is
necessary as a result of the extension of the definition of `preparation' to include
the capturing or taking of fish whether from the wild or from stocks maintained
using aquaculture.
Item 3
6. Item 3 extends the definition of `preparation' in section 3 of the Export Control
Act to include the capturing or taking of fish whether from the wild or from stocks
maintained using aquaculture that are prescribed goods or from which prescribed
goods are obtained. This amendment (as well as the consequential amendments
in items 1 and 2 above) removes any doubt that the Commonwealth has a level of
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control over the sourcing of fish intended for export. To ensure ongoing access for
exported product into overseas markets and consumer protection, fish, including
shellfish must be harvested from areas that do not contain pathogenic organisms,
biotoxins and chemical contaminants at levels that may represent a threat to consumer
health.
Item 4
7. Item 4 inserts a new definition in section 3 of the Export Control Act. The new
definition is for the expression `registered establishment'. This amendment is
intended to create greater uniformity, consistency and certainty in the way that
certain expressions are used in the Act. The expression `registered establishment'
was defined for the purposes of section 24 of the Export Control Act only. This
item now applies the definition to the whole Act and consequential amendments
ensure that this expression replaces the expression `registered premises' that has
also been used in the Export Control Act for a similar purpose. The note to this
item is intended to support the continued use of the expression `registered
premises' in subordinate legislation made under the Export Control Act.
Although most of the references in subordinate legislation are to the expression
`registered establishment', some subordinate legislation has a long record of usage
of the expression `registered premises'.
Item 5
8. Item 5 repeals the definition of `registered premises'. This amendment is made as
a consequence of the adoption of the expression `registered establishment' for the
reasons explained in item 4 above.
Item 6
9. Item 6 inserts four new offence provisions. These offences fill a gap in the
existing offence provisions in the Export Control Act. The provisions create
offences that apply to a person who is in control of the preparation of goods that
are exported and who has not ensured that the goods have been prepared in
accordance with the conditions and restrictions set out in regulations. Offence
provisions under the Export Control Act currently apply to the person exporting
prescribed goods or to persons in possession of prescribed goods if they intend to
export those goods or know that there is an intention to export those goods. While
there is a need for such offences, they do not focus on the very important
preparation stage of the export process. For reasons of food safety the main
emphasis of the Export Control Act's subordinate legislation is on the preparation
of goods, rather than their export. By creating these preparation offences, the
Commonwealth will be sending a clear message to those people who fail to ensure
that goods are prepared for export in accordance with the legislation, and therefore
will be more confident about the safety of food to be exported and its ability to
meet overseas countries' requirements.
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10. The offence provisions fall into two general categories: one category (new section
8A) deals with two offences that have no strict liability elements and the other
category (new section 8B) deals with two offences each of which has three strict
liability elements. The offences within each category are identical in all respects
(i.e. they have the same physical and mental elements and penalties) except that
the first offence in each category deals with the export of goods to any place and
the second offence in each category deals with the export of goods to a particular
place. The creation of the offences in this way mirrors paragraphs 7(2)(c ) and (d)
of the Export Control Act which enables regulations to be made prohibiting the
export of prescribed goods (to any place) unless specified conditions or
restrictions are complied with or prohibiting the export of prescribed goods to a
particular place unless specified conditions or restrictions are complied with.
11. The four new offences each have the same mental elements except in relation to
the physical elements of the person being the occupier of the establishment, the
preparation of the goods at the establishment and the non-compliance with the
conditions or restrictions described in paragraphs (a), (b) and (g) of each offence.
The mental elements for these physical elements in the two offences in new
section 8A are recklessness, intention and recklessness respectively in accordance
with section 5.6 of the Criminal Code.
12. In the two offences in new section 8B, strict liability is applied to the physical
elements in paragraphs (a), (b) and (g). The application of strict liability in these
circumstances is important as otherwise persons in control of food preparation
establishments can avoid the consequences of non-compliance with the law by
simply saying that they were not aware of what was occurring at their
establishment. The addition of the strict liability offences is likely to significantly
enhance the effectiveness of the enforcement regime by requiring such people to
have systems in place to ensure that the law is complied with.
13. In all four offences, section 9.4 of the Criminal Code is relied on to establish
whether the alleged offender knew that the goods were prescribed, that the
relevant regulations existed and that conditions or restrictions (as specified in
regulations) applied. These elements are found in paragraphs (c ), (e) and (f) of
each offence. Section 9.4 ensures that the prosecution does not have to prove the
defendant knew of the existence of the relevant provisions in the subordinate
legislation.
14. The expression "occupier" is defined in both new section 8A and 8B in exactly the
same way. The scope of the definition includes occupiers of both registered and
unregistered establishments. To avoid inadvertently catching an innocent
occupier of an establishment that usually prepares goods for domestic
consumption only, strict liability is not applied to the physical element of the
actual export of the goods after preparation. The same fault element
(recklessness) applies to this physical element in all four offences (found in
paragraph (d) of each offence) under subsection 5.6(2) of the Criminal Code.
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15. The maximum penalty for the two offences in new section 8A is imprisonment for
5 years. The maximum penalty for the two offences in new section 8B is 60
penalty units. The level of penalty for the first two offence provisions is
consistent with the penalties for existing offences in sections 7A and 8 of the
Export Control Act. The level of penalty for the second two offences is consistent
with the Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.
Item 7
16. Item 7 substitutes a new subparagraph (i) in paragraph 10A(1)(a) of the Export
Control Act. This amendment is minor and technical and is made as a
consequence of the replacement of the expression `registered premises' with
`registered establishment' throughout the Export Control Act.
Item 8
17. Item 8 substitutes a new paragraph (a) in subsection 10D (2) of the Export Control
Act. This amendment is minor and technical and is made as a consequence of the
replacement of the expression `registered premises' with `registered
establishment' throughout the Act.
Item 9
18. Item 9 substitutes a new heading for Division 6 of Part III of the Export Control
Act. This amendment is minor and technical and is made as a consequence of the
replacement of the expression `registered premises' with `registered
establishment' throughout the Export Control Act.
Item 10
19. Item 10 omits the expression `registered premises' and substitutes `premises that
form part of a registered establishment' in subsection 11P (1). This amendment is
minor and technical and is made as a consequence of the replacement of the
expression `registered premises' with `registered establishment' throughout the
Export Control Act.
Items 11 to 15
20. Items 11 to 15 restructure section 24 of the Export Control Act. These
amendments are minor and technical and are made as a consequence of the
replacement of the expression `registered premises' with `registered
establishment' throughout the Export Control Act. The amendments do not
change the effect of the section but rather the way in which it is expressed.
Section 8 of the Acts Interpretation Act 1901 is relied on to preserve the right to
prosecute and impose a penalty in respect of an offence committed under the now
repealed subsections.
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Item 16
21. Item 16 substitutes `an establishment' for `premises' in paragraph 25(2)(d) of the
Export Control Act. This amendment is minor and technical and is made as a
consequence of the replacement of the expression `registered premises' with
`registered establishment' throughout the Export Control Act.
Item 17
22. Item 17 inserts a new paragraph in subsection 25(2) of the Export Act Control
Act. Subsection 25(2) specifies the matters about which regulations may be made.
The new paragraph will empower the Governor-General to make regulations and
orders imposing fees for the performance of a service by the Secretary or a
delegate of the Secretary and for the remission of fees so imposed. Currently, the
Export Control Act authorises the imposition of fees for, amongst other things, the
registration of premises and in connection with the performance of services of
authorised officers. As the Secretary and delegates of the Secretary also
perform services under the Export Control Act which would normally attract fees
if performed by authorised officers, this amendment will enable the Australian
Quarantine and Inspection Service to recover appropriate costs for such services.
Item 18
23. Item 18 inserts a new subsection in section 25 of the Export Control Act. The
purpose of this amendment is to clarify that fees imposed under the Export
Control Act are not taxes and therefore must comply with the legal principles that
apply to the setting of fees.
Schedule 2 - Amendment of the Quarantine Act
NOTES ON ITEMS
Item 1
1. This item inserts a new section in the Quarantine Act that will facilitate business
between the Australian Quarantine and Inspection Service (AQIS) and the rest of
the Commonwealth. In particular, the new section, section 86EA, imposes a
notional liability on the Commonwealth to pay the fees specified in a
determination made under subsection 86E(1B) of the Quarantine Act for
quarantine services. The effect of this amendment is to give AQIS the authority
to require payment from agencies and other Commonwealth bodies for quarantine
services and to give these agencies and other Commonwealth bodies the legal
authority to make payments to AQIS for quarantine services.
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2. The new section empowers the Finance Minister to give such written directions as
are necessary or convenient for carrying out or giving effect to this new notional
liability. These written directions are not legislative instruments under the
Legislative Instruments Act 2003 (the LIA). For the avoidance of doubt, however,
the new section includes a declaratory statement in subsection 86EA (4) that the
written directions are not legislative instruments for the purposes of the LIA.
Item 2
3. This item provides that section 86EA will apply to quarantine fees that are
incurred on or after the commencement of this Schedule.
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