Bills Digest No. 75   Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 2) 1998


Numerical Index | Alphabetical Index

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

Passage History

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

  1. Department of Foreign Affairs and Trade, Marrakesh Agreement establishing the World Trade Organization (WTO), Australian Treaty Series 1995 No. 8, 15 April 1994.

  2. The Age, 'The story so far...#31 The gas crisis', The Age, 5 October 1998, p. A10.

  3. Victorian Farmers' Federation, 'Gas crisis: Farmers miss out on Commonwealth aid', October 1998. Also available at http://www.vff.org.au/press/10000221.htm.

  4. Leonie Wood, John Rouw & Helen Shield, 'Industry gas meltdown', The Age, 29 September 1998, p. 2.

  5. Tracey Joynson, 'Natfoods claims on gas", Herald Sun, 13 November 1998, p. 87.

  6. 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.

  7. Agriculture, Fisheries and Forestry Legislation Amendment Bill (No.2) 1998, Explanatory Memorandum, p. 2.

  8. Personal communication, Registrar of the Plant Breeder's Rights Office, Canberra, 10 December 1998.

Contact Officer and Copyright Details

Brad Hinton
19 January 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1999.

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