WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Date Introduced: 3 December 1998
House: House of Representatives
Portfolio: Agriculture, Fisheries and Forestry
Commencement: On Royal Assent
Purpose
The major
amendments proposed by the Bill:
-
- provide protection for intellectual property of new
constituents in agricultural and veterinary chemicals in accordance
with the World Trade Organisation Agreement Article 39(3)
on Trade Related Aspects of Intellectual Property Rights
-
- overcome the unintended consequences of the Dairy Produce
Act 1986 with respect to payments under the Domestic Market
Support scheme as a result of the Victorian gas crisis
-
- facilitate administrative arrangements under the Export
Control Act 1982 in order to strengthen enforcement powers and
to assist in enabling exporters to take a greater role in product
quality under the guidance of the Australian Quarantine Inspection
Service (AQIS)
-
- provide clarification about trade samples and strengthen
compliance under the Food Control Certificate and grants power to
the Secretary in approving operational inspections and evaluations,
and
-
- facilitate easier naming of plant varieties under the Plant
Breeder's Variety Act 1994 and for a list to be made available
for applicants from the Plant Breeder's Rights office without
charge.
Background
As there is no central theme to the Bill, a
background to the major amendments is outlined in the 'Main
Provisions' section of this Digest.
Main Provisions
Schedule 1 - Amendment of the
Agricultural and Veterinary Chemicals (Administration) Act
1992
The Agricultural and Veterinary Chemicals
(Administration) Act 1992 established the National
Registration Authority for Agricultural and Veterinary Chemicals
(NRA). This legislation took effect from 15 June 1993. The NRA has
powers determined under this Act and the Agricultural and
Veterinary Chemicals Code Act 1994. The responsibilities of
the NRA include the regulation of agricultural and veterinary
(agvet) chemicals prior to retail sale and in the evaluation and
registration of agvet chemicals under the National Registration
Scheme.
A Productivity Commission Report into
the Pharmaceutical Industry (Report No. 51) was released on 10
September 1996. As part of the government's response, the
government proposed to introduce data exclusivity in relation to
the registration of data submitted to government authorities, such
as the NRA. The Coalition Government announced on 11 December 1996
that it would establish a new regime for the protection of new data
submitted to the NRA in order to protect the intellectual property
of the agvet information. This was in accordance with the
Australian Government's commitment to the Marrakesh
Agreement establishing the World Trade Organization (WTO
Agreement). This Agreement came into force on 1 January 1995.
Article 39(3) of the WTO Agreement, dealing with Trade
Related Aspects of Intellectual Property Rights (TRIPS), says
that:
Members, when requiring, as a condition of
approving the marketing of pharmaceutical or of agricultural
chemical products which utilize new chemical entities, the
submission of undisclosed tests or other data, the origination of
which involves a considerable effort, shall protect such data
against unfair commercial use. In addition, Members shall protect
such data against disclosure, except where necessary to protect the
public, or unless steps are taken to ensure that the data are
protected against unfair commercial use".(1)
The Minister in his Second Reading Speech to the
Bill states:
The proposed amendments to the Agricultural
and Veterinary Chemicals (Administration) Act 1992 will
provide five years protection for such data and thus remove any
doubt as to whether or not Australia is fulfilling its obligations
under Article 39(3).
A new Part 7B is inserted in
the Act by item 1 of Schedule 1
which modifies the Agvet Codes in line with Article 39(3) of the
TRIPS Agreement within the World Trade Organisation Agreement.
Schedule 2 - Amendment of the
Dairy Produce Act 1986
The Dairy Produce Act 1986, among other
things, established the Dairy Produce Market Support Fund. The
Australian Dairy Corporation (ADC) used this fund to supplement
dairy farm incomes for manufactured dairy products exported
overseas, subject to particular conditions or restrictions. Changes
to this Act were required in 1995 to conform to international
obligations under the General Agreement on Tariffs and Trade (GATT)
and its successor, the World Trade Organisation (WTO). The
Dairy Produce Amendment Bill 1995, in conjunction with the
Dairy Produce Levy (No.1) Amendment Bill 1995 and the
Dairy Produce Levy (No.2) Amendment Bill 1995, sought to
remove the subsidy element of the Act and replace it with a
Domestic Market Support Fund. These amendments came into force on 1
July 1995.
The Domestic Market Support Fund would receive
funds generated by two new levies on the dairy industry. The first
levy is on market milk paid by dairy farmers. The second levy is
paid by manufacturers for milk used in the manufacture of dairy
products for domestic sale. Market Support Payments to
manufacturers for exported dairy produce ceased on 30 June
1995.
During the Victorian gas crisis Victorian
producers were forced to dump millions of litres of milk and
curtail production. Levies were still payable despite this major
loss of income. This Bill seeks to rebate producers out of
Australian Dairy Corporation funds.
Victorian gas supply failure
On Friday 25 September 1998 a series of
explosions at Esso Australia's gas plant at Longford in eastern
Victoria caused a number of fires and the death of two workers.
Plant No.1 was extensively damaged. The plant was taken offline by
the company and gas supplies were effectively halted. Victorian
business, industry and consumers were forced to turn off the gas
until repairs to the plant made it safe to resume services. Gas
supplies slowly began to resume in the week beginning Monday 5
October.
The Victorian dairy industry was one industry to
suffer as a result. The Age reported that on the day after
the explosion, "dairy farmers were forced to pour milk down the
drain as machinery in the pasteurisation process rely on gas".(2)
The Victorian Farmers' Federation (VFF) issued a press release on
October 19 stating that "most major dairy factories in Victoria
normally operate on gas. Initially, when gas supplies were
unavailable, companies could not accept farmers' milk and, as a
result, 25 million litres ran to waste".(3) Dairy producer Bonlac
was forced to close milk processing plants in Darnum, Drouin,
Longwarry, York Street, Spring Valley Beverages and Stanhope.(4)
Another large producer, National Foods Limited, lost five days'
production at its Morwell dairy factory and one day at the factory
at Chelsea.(5)
The Australian Dairy Industry Council (AIDC)
wrote a letter dated 20 October 1998 to the Minister expressing
concern over the unintended effects of current legislation
concerning the Domestic Market Support scheme and the payment of
levies. The letter noted that discussions had already taken place
with former Minister John Anderson prior to the October 1997
Federal election. The Council estimated that "the aggregate loss to
affected firms and farmers will be $1.3-1.5 million. At farm level,
the losses will range from $200 for the smallest producers to over
$1000 for larger farm units...The AIDC does not believe that this
outcome is consistent with the aims of the current national
marketing arrangements for dairy.(6)
The extent of the Victorian gas crisis to the
industry is compounded by the fact that Victoria is Australia's
leading producer of dairy products, surpassing the combined total
of the other states.
A Royal Commission into the crisis began its
public hearings on 14 December 1998 under the commissioners Sir
Daryl Dawson (a former High Court judge) and engineer Mr Brian
Brooks.
Under the current legislation the levies are
still payable by the dairy producer and the manufacturer despite
the fact that no income was derived since the milk was either
destroyed by the producer on the farm or by the manufacturer at the
factory. This amendment seeks to redress the consequences of the
gas crisis for dairy producers by way of rebating the costs
associated with the levies under the Domestic Market Support
scheme. The levy rebates are payable from the Australian Dairy
Corporation's Domestic Fund which funds the Domestic Market Support
scheme. Manufacturers and producers affected by the gas crisis
between 26 September and 5 October 1998 are able to apply to the
Australian Dairy Corporation for this levy rebate.
The major provisions, proposed sections
108EA and 108EB, compensate dairy manufacturers and dairy
producers for levies paid under the Domestic Market Support Scheme
on milk destroyed by the manufacturer after delivery or by the
producer on the farm.
-
- A rebate will apply to the difference between any levy amount
already paid in the relevant month and the amount payable had the
milk not been destroyed by the manufacturer. A written application
must be sent to the Australian Dairy Corporation within 28 days of
the commencement of this proposed section, and
-
- payments to dairy producers will be made if the producer, prior
to 6 October 1998, produced milk for delivery to a manufacturer as
manufacturing milk and as a result of the gas failure, milk was not
delivered but destroyed in the period between 26 September 1998 and
the end of 5 October 1998. The Australian Dairy Corporation will
make the payment to the producer for an amount equal to the payment
of the domestic market support scheme if the milk had been
delivered to a manufacturer. Applications must be made on the
approved form and sent to the Australian Dairy Corporation within 3
months after the commencement of this proposed section.
In summary, the Explanatory Memorandum to the Bill
states that
this payment is to be equivalent to the market
support payment which would have been received if the milk had been
delivered and used as manufacturing milk. A producer is not
entitled to receive this payment for market milk.(7)
Schedule 3 - Amendment of the
Export Control Act 1982
The Export Control Act 1982 was enacted
to provide for the control of the export of certain goods and
related purposes. The current amendment seeks to clarify some
definitions and to provide new enforcement and monitoring powers,
especially related to seizures and searches. It also grants power
to the Secretary for approvals associated with quality assurance
and administrative arrangements with respect to prescribed goods
for export and in obtaining relevant information.
The main provisions are:
-
- authorised officers may search premises, take samples and
photographs at the premises, make copies or take extracts from any
documents, books or records on the premises; and to ensure the
premises are secure (proposed section 10)
-
- To be able to enter premises and/or stop and detain vehicles
for searching (proposed section 10A). Monitoring
warrants may be granted by a magistrate to authorised officers if
sufficient information provided suggests the need to access
premises in order to ascertain compliance under all or part of this
Act (proposed section 10B)
-
- The Secretary may require any information to be supplied by a
person to the Secretary relating to any prescribed goods that have
or will be exported. This request must be made in writing and must
state and provide for a reasonable time for compliance
(proposed section 11Q).
Schedule 4 - Amendment of the
Imported Food Control Act 1992
The Imported Food Control Act 1992
commenced operation on 15 June 1993. The Act provides for the
inspection and control of food imported into Australia and is used
in conjunction with the Quarantine Act 1908. According to
the Minister's Second Reading Speech, this legislation will not
affect Australian quarantine standards.
The main provisions are:
-
- a new subsection 7(3) is inserted in the
Principal Act by item 4 of Schedule 4 which
defines food of a particular kind imported as a trade sample. A
trade sample can be one imported for scientific or commercial
evaluation; and not imported for consumption by any persons; and
the food is in liquid form within stated specifications
-
- the Secretary may approve or revoke a food processing operation
(item 10)
-
- the Secretary may approve compensation payments for food no
longer suitable for the purpose for which it was imported caused by
the inspection or analysis under the Food Inspection Scheme
(item 14 of Schedule 4) and
-
- the amount of compensation is to be agreed to by the Secretary
and the owner/s of the food. This amount is to be the difference
between the market value of the food immediately prior to it
becoming unsuitable and the amount, if any, for which the food is
sold by the owner/s (item 16 of Schedule 4).
Schedule 5 - Amendment of the
Plant Breeder's Rights Act 1994
The Plant Variety Rights Act 1987
established the Plant Variety Rights Scheme (PVRS).
The Plant Breeder's Rights Act 1994
granted proprietary rights to plant breeders of particular new
varieties in accordance with the 1991 revision of the International
Convention for the Protection of New Varieties of Plants (the UPOV
Convention). The Plant Breeder's Rights Act 1994 repealed
the Plant Variety Rights Act 1987.
The Plant Breeder's Rights Office (PRBO)
administers the scheme within the Department of Agriculture,
Fisheries and Forestry. The Register of listed plant classes is
published on a subscription basis in the quarterly publication,
Plant Varieties Journal, and is available on the internet
through http://www.daffa.gov.au/agfor/dpr/dpr.htm.
Plant breeder's rights are conferred for a period of 25 years for
trees or vines, and a period of 20 years for other varieties.
This amendment seeks to make it easier to name
and register plant variety names with the Plant Breeder's Rights
office. Some duplication of names will be permitted if they relate
to different plant classes and where there is no confusion between
varieties. Plant classes are determined by the International Union
for the Further Protection of New Varity of Plants (UPOV).
Classification is by denomination class except where similarities
exist and reference is then made to genus. For example, the same
name applied to mangoes, tomatoes and arrowroot would be acceptable
since they are in different plant classes. The intention is for the
Plant Breeder's Rights office in Australia to compile a list using
the denomination classes and the International Code for
Nomenclature of Cultivated Plants. This list will be updated
frequently and made available to the public and to relevant bodies
such as AQIS.(8) Although the fifty dollar fee for copying entries
from the Register is to be waived under this amendment, an
application fee ($300), examination fee ($800-$1400), certificate
fee ($300) and an annual fee ($300) are still payable at the
relevant time.
The main provisions are:
-
- item 1 of Schedule 5 defines
plant class as one that belongs to a single botanical genus or
closely related genera, and
-
- item 5 which provides for a list of all plant
classes to be maintained on a Register by the Registrar.
Endnotes
-
- Department of Foreign Affairs and Trade, Marrakesh Agreement
establishing the World Trade Organization (WTO), Australian
Treaty Series 1995 No. 8, 15 April 1994.
- The Age, 'The story so far...#31 The gas crisis',
The Age, 5 October 1998, p. A10.
- Victorian Farmers' Federation, 'Gas crisis: Farmers miss out on
Commonwealth aid', October 1998. Also available at
http://www.vff.org.au/press/10000221.htm.
- Leonie Wood, John Rouw & Helen Shield, 'Industry gas
meltdown', The Age, 29 September 1998, p. 2.
- Tracey Joynson, 'Natfoods claims on gas", Herald Sun,
13 November 1998, p. 87.
- Letter from the Australian Dairy Industry Council to the
Minister for Agriculture, Fisheries and Forestry, 'Victorian Gas
Shortage and Domestic Market Support Arrangements', 20 October
1998.
- Agriculture, Fisheries and Forestry Legislation Amendment Bill
(No.2) 1998, Explanatory Memorandum, p. 2.
- Personal communication, Registrar of the Plant Breeder's Rights
Office, Canberra, 10 December 1998.
Brad Hinton
19 January 1999
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 1999
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