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Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 1) 2000
Date Introduced: 28 June 2000
House: House of Representatives
Portfolio: Agriculture, Fisheries and Forestry
Commencement: With the exception of a technical amendment to the Public Employment (Consequential and Transitional) Amendment Act 1999 (item 8 of Schedule 2), this Act is to commence on a date to be fixed by Proclamation, or not later than 6 months after Royal Assent. The amendment to the Public Employment (Consequential and Transitional) Amendment Act 1999 is to commence retrospectively on 11 November 1999 which is the date that Act received Royal Assent.
Schedule 1 of the Bill proposes to amend the Quarantine Act 1908 to
- recognise that quarantinable pests and diseases may themselves be matters of quarantine concern
- confirm that offences against State and Territory laws may be relevant to a person's suitability to manage a place where goods subject to quarantine may be treated or dealt with
- allow seizure notices to be given to consignees, particularly of mail articles, even though they may not be the importers of the goods, and
- introduce a regime for the use of electronic notices in the quarantine clearance of goods.
Schedule 2 of the Bill proposes to:
- amend the Australian Wine and Brandy Corporation Act 1980 to correct an anomoly with voting arrangements at the Australian Wine and Brandy Corporation's Annual General Meetings, and
- make a technical correction to the Public Employment (Consequential and Transitional) Amendment Act 1999 by substituting the term 'an Agency' for 'a Department of the Commonwealth'.
As there is no central theme to the Bill, the background to the amendments will be included in the Main Provisions of this Digest.
Amendments to the Quarantine Act 1908
Quarantine in Australia is administered by the Australian Quarantine and Inspection Service (AQIS), an operating group within the Department of Agriculture, Fisheries and Forestry. Following the Nairn Report on Australian Quarantine: a shared responsibility (1996),(1) AQIS has concentrated on measures to address pre-border, border and post-border quarantine concerns.(2) AQIS tries to ensure that, to the maximum extent possible, quarantine risks are addressed overseas before goods are imported into Australia. It does this by monitoring the animal and plant health situation and by setting up certification procedures (eg. for fumigation) in exporting countries.
Australian quarantine services at the border include surveillance, monitoring, examination and clearance, and are normally performed at airports, seaports, quarantine stations and authorised premises. Quarantine officers are stationed in both capital cities and regional centres such as Broome, Cairns and Newcastle. Items of quarantine concern are seized and placed under quarantine control. Quarantine officers may issue orders about the movement and treatment of goods. Some goods are treated before being returned to the person who has imported them, and others are destroyed or exported. According to the latest annual report, AQIS intercepted almost 228 000 prohibited items in 1998-99. Of these, 9 000 involved pests or diseases of economic concern.(3) International mail is also subject to quarantine clearance, and this is carried out by profiling, scanning or inspection. During 1998-99 162 million mail articles were processed.(4)
In general, pests and diseases are declared as quarantinable diseases and quarantinable pests if they are not established in Australia. At present all goods infected with a quarantinable disease or quarantinable pest are subject to quarantine under subsection 18(2) of the Quarantine Act 1908 (the Act). Item 5 of Schedule 1 of the Bill inserts a proposed new paragraph 18(2)(ba) to define quarantinable diseases and quarantinable pests themselves as 'goods'. The effect of this is that they will now become subject to quarantine control. Section 35 of the Act deals with the order into quarantine which a quarantine officer may issue in writing. Item 6 inserts a proposed new subsection 35(1AA) to cover the order into quarantine of quarantinable pests and diseases, consistent with the amendment made to subsection 18(2) of the Act. Items 13 and 14 make similar amendments to the treatment of vehicles and the treatment of premises that may have been exposed to a quarantinable pest or disease. In the same manner, item 16 extends the definition of 'infected goods' in subsection 66AA(5) to include quarantinable diseases or quarantinable pests.
Section 46A enables the Director of Quarantine to approve a place other than a quarantine station as a place where goods that are subject to quarantine may be treated or dealt with. In order to obtain approval to manage such a place, the owner or occupier must submit a written application, pay a fee and be prepared to make and sign a declaration regarding any prior offences concerning the importation or movement of goods. At present, section 46A is limited to offences against Commonwealth laws. Items 7, 8 and 9 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. Item 11 substitutes a proposed new paragraph 48(1)(a). The effect of this amendment is to remove the restriction that allows goods to be detained at the place where they are located, at the time they are located, only when the goods are located on board a vessel or installation.
Under section 68 a quarantine officer may give a notice to the importer or the owner of plants, animals and other goods imported into Australia, stating that the goods have been seized and forfeited to the Commonwealth, and that they will be sold, destroyed, exported or otherwise disposed of in any way that a Director of Quarantine thinks appropriate. The amendment proposed by item 20 extends paragraph 68(4)(a) so that the notice may also be given to a consignee. The purpose of this proposed amendment is to allow the requirements of section 68 to be satisfied by giving the notice to the addressee of a mail article, even though he or she may not be the importer in the usual sense of the word.
Automated systems for quarantine clearance of cargo
AQIS uses a number of computerised information systems to improve the efficiency and reliability of its operations. These systems are directly linked to the Australian Customs Service (ACS). In 1996 the Nairn Report on Australian quarantine recommended that:
...Quarantine Australia develop and increase the use of electronic information systems to speed the clearance of cargo, subject to the development of satisfactory quality assurance systems and audit procedures.(5)
In August 1997 the Government responded to the Nairn Report and said, with regard to the increased use of electronic systems for cargo clearance:
The Government endorses the proposal that AQIS continue to develop and enhance electronic systems that facilitate cargo clearance and that AQIS incorporate into its electronic systems industry requirements for the electronic clearance of cargo.
The electronic system AQIS uses to process approximately 195,000 quarantine entries a year and transmit electronic cargo releases, commonly known as AIMS, requires redevelopment to continue to be an effective cargo processing and clearance system. The application has been in operation since 1992 and the changes in technology and modifications of adjoining systems have made it essential that the system undergo significant redevelopment to ensure it will continue to function effectively in a changing electronic trading environment.
The importance of redeveloping the AIMS application is apparent in the direct impact on AIMS of a number of other recommendations made by the Nairn Review Committee, which rely on the system for retrieval, processing and transmission of import data. The AIMS application is also integral to gathering data to enable AQIS to target exotic pests and diseases and develop policy strategies.
The Government has approved additional funding of around $2.597 million over the next four years to improve existing joint systems with the ACS consistent, whenever possible, with the ACS Cargo Management Strategy.(6)
Item 15 of Schedule 1 inserts a proposed new Part VA to provide for the automation of procedures for goods arriving in Australia. Proposed new subsection 56(1) provides that an electronic notice may be given to a person, or to an agent of that person, who has imported goods that have not been released from quarantine. An electronic notice is defined in proposed new subsection 56(11) to mean a notice generated from a computer program under the control of the Director of Animal and Plant Quarantine.
Proposed new subsections 56(5) and 56(6) create offences for contravening a requirement contained in an electronic notice. According to the Explanatory Memorandum, the requirement that the person be 'given' the notice will protect him or her from being prosecuted if they do not receive the electronic notice.(7) The Explanatory Memorandum states that the courts have interpreted the word 'given' as 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.
Proposed new subsections 56(5) and 56(6) deal with the presumption of whether an electronic notice has been received or not. Section 16 of the Act already provides for written notices to be sent by electronic means. At present the presumption under section 16 is that if a notice has been sent electronically, then it has been received. Regulations made under section 16AG deal with the evidence that a person may use to prove that they have, or have not, been given an electronic notice. The proposed new subsections 56(5) and 56(6) appear to reverse this presumption. Following the information in the Explanatory Memorandum, the presumption seems to be that if a person denies receiving an electronic notice, then the prosecution has to prove that it was given.
Proposed new 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 is a rule intended to reconcile any inconsistent electronic notices generated by the computer.
The existing powers of quarantine officers under the Act are not altered by the introduction of the automated system. Proposed new subsection 56(10) provides that where an order or direction given by a quarantine officer in inconsistent with an electronic notice under section 56, the electronic notice is, to the extent of the inconsistency, of no effect.
Amendments to the Australian Wine and Brandy Corporation Act 1980
The Australian Wine and Brandy Corporation (AWBC) is the statutory authority with responsibility for the promotion and regulation of Australian wine, wine products and brandy. The Corporation draws the bulk of its revenue from the wine and brandy producers who pay the Wine Grapes Levy and the wine and brandy exporters who pay the Wine Export Charge. These levy and charge payers are recognised under the Australian Wine and Brandy Corporation Act 1980 (the Principal Act) as having the right to attend and vote at the Annual General Meetings of the Corporation.
A charge on exports of Australian wine is imposed by the Wine Export Charge Act 1997. The purpose of the charge is to raise funds from the industry to fund the export promotion program managed by the AWBC.(8) The export charge is imposed at the request of the wine industry in order to carry out a generic export promotion program which the industry regards as an essential component of its export growth strategy.(9) In the twelve months ending July 1999, the wine industry achieved $1 billion in export sales.(10) Estimated revenue from the Wine Export Charge and Wine Grapes Levy is as follows:
Estimated Revenue 1999-2000
Estimated Revenue 2000-2001
Wine Export Charge
Wine Grapes Levy
Source: Agriculture, Fisheries and Forestry Portfolio, 'Portfolio Budget Statements 2000-01, Budget related paper no. 1.1, p. 83.
Section 29U of the Principal Act defines who may attend the annual general meetings of the AWBC. Only people identified on the annual list of producers as levy or charge payers have voting rights at the annual general meetings (subsection 29V of the Principal Act). The effect of items 1 and 2 of Schedule 2 is to treat trusts and partnerships liable for the wine export charge consistently with those that pay the wine grapes levy.
Item 3 of Schedule 2 repeals section 29Z of the Principal Act which deals with voting at AWBC annual general meetings. The provisions of section 29Z are to be incorporated into the Australian Wine and Brandy Corporation (Annual General Meeting of the Industry) Regulations 1999. Section 46 of the Principal Act contains the regulation making powers of the legislation. Items 5, 6 and 7 add to the matters on which the Governor-General may make regulations concerning the annual general meeting of the AWBC. In particular, item 6 adds the power to make regulations on the method of determining votes that an eligible producer may cast (presently included in subsection 29Z(1)). Item 7 adds the power to make regulations on the confidentiality of voting presently included in subsection 29Z(2).
Schedule 13 of the Primary Industries (Customs) Charges Act 1999 deals with the wine export charge. Subclause 5(1) of that Act concerns regulations for working out the amount of the charge. The effect of item 4 of Schedule 2 is to provide a reference to the existing requirements that permit the AWBC to make recommendations to the Minister, under certain circumstances, on the rate of the wine export charge.
The purpose of item 8 of Schedule 2 is to correct an earlier amendment to the Australian Wine and Brandy Corporation Act 1980 by substituting the term 'an Agency' for 'a Department of the Commonwealth'. This proposed amendment is to commence retrospectively from 11 November 1999, this being the date on which the Public Employment (Consequential and Transitional) Amendment Act 1999 received Royal Assent. (The amended section of the Australian Wine and Brandy Corporation Act 1980 deals with the wine label integrity program and enables the Corporation to provide levy information to the relevant Agency. The earlier amendment was misdescribed to subsection 39ZL(1) instead of to subsection 39ZL(1A).)
- Australian Quarantine Review Secretariat, Australian Quarantine: a shared responsibility, [by] M.E.Nairn, P.G.Allen, A.R.Inglis and C.Tanner, Department of Primary Industries and Energy, Canberra, 1996.
- The Australian Quarantine Report, 'Quarantine Activities and Achievements, August 1997-December 1998', AQIS, May 1999, p. 2.
- Department of Agriculture, Fisheries and Forestry, Annual Report 1998-1999, p. 40.
- ibid., p. 29.
- Australian Quarantine Review Secretariat, op cit, p. 136 (Recommendation 63).
- Australian quarantine: a shared responsibility: the Government response, circulated by John Anderson, Department of Primary Industries and Energy, Canberra, August 1997, p. 27.
- Explanatory Memorandum, Agriculture, Fisheries and Forestry Legislation Amendment Bill (No 1) 2000, p. 7.
- Press Release, Minister for Primary Industries and Energy, 13 February 1997.
- Australian Wine and Brandy Corporation, Annual Report 1995-96, p. 22.
- Australian Wine and Brandy Corporation, Annual Report 1998-99, p. 23.
4 September 2000
Bills Digest Service
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