Agricultural
and Veterinary Chemicals (Administration) Amendment Bill 2004
Date
Introduced:
11 February 2004
House:
House of Representatives
Portfolio:
Agriculture, Fisheries and Forestry
Commencement:
The day after the Act receives Royal Assent
To amend the Agricultural and
Veterinary Chemicals (Administration) Act 1992 (the Act)
as part of the legislative changes required to allow ratification
of the Rotterdam Convention on the Prior Informed Consent Procedure
for Certain Hazardous Chemicals and Pesticides in International Trade
(the Rotterdam Convention) and the Stockholm Convention on Persistent
Organic Pollutants (the Stockholm Convention).
The Act established the National Registration Authority
for Agricultural and Veterinary Chemicals (the NRA). The NRA(1)
is the Australian government authority responsible for the assessment
and registration of pesticides and veterinary medicines and for their
regulation up to and including the point of retail sale.
In 1994, Part 7A was introduced into the Act by the
Agricultural and Veterinary Chemicals (Consequential Amendments)
Act 1994 to give the NRA control over the importation, manufacture
and exportation of, in the language of the Act, ‘active constituent
and chemical products’. Currently Part 7A contains offences regarding
the illegal importation etc of prescribed active constituent and chemical
products (hereafter ‘chemicals’) and accompanying enforcement powers,
including search and seizure.
In July 1999, Australia
signed the Rotterdam Convention. As its name implies, the emphasis
of the Rotterdam Convention is the exchange of information between
countries so that importing countries are fully aware of the potential
hazards of importing relevant certain chemicals and pesticides. The
Rotterdam Convention does not actually ban any chemicals or pesticides.
Australia
signed the Stockholm Convention in May 2001. Persistent Organic Pollutants
(POPs) are chemical substances that persist in the environment, and
accumulate in the food chain, thus posing significant risks to human
health and the environment. Parties to the Convention must take measures
to reduce or eliminate the release of POPS into the environment, including
managing wastes that may contain POPs.
Essentially the Bill provides that regulations may
prescribe that a person who imports, manufactures, uses, deals with
or exports nominated chemicals must provide specified information
to the NRA or the Department administering the Act. The requirement
to provide information can include chemicals that are the subject
of an international agreement that is not yet in force in Australia
or even a prospective agreement that is still under negotiation. The
Bill creates offences for failing to supply the required information
or for supplying false or misleading information. (if any)
Item 1 inserts new sections 69CA-CD.
New section 69CA allows for regulations to
prescribe that information requirements attach to specified chemicals
for ‘the purposes of complying with a prescribed [international] agreement
or arrangement’. A person who imports, manufactures, uses, deals with
or exports relevant chemicals must provide the prescribed information
to the relevant agency(2) in a form and within a time period
to be set out in regulations. Such requirements cannot apply before
the relevant agreement or arrangement comes into force in Australia.
New section 69CB mirrors new section 69CA
except that it is ‘anticipatory’ in scope. That is, it
allows for information requirements to apply to chemicals that are
the subject of an international agreement that is not yet in force
in Australia
or are under ‘consideration’ either by an international agreement
that is not yet in force in Australia
or a prospective agreement that is still under negotiation.(3)
Where a person only manufactures, uses or deals with(4)
the relevant chemical, the information requirements only arise where
the situation falls within the Commonwealth’s constitutional power
with respect to trading corporations, interstate or overseas trade,
Territories, or Commonwealth entities.
New section 69CC allows the administering
Department or the NRA to provide other countries or relevant international
organisations with information regarding importation, manufacture,
use, exportation or any other dealing with chemicals which is prescribed
in regulations pursuant to new subsections 69CA(1) or 69CB(2).
In doing so, the Department or the NRA may (but is not obliged
to) take into account the terms of the international agreement or
arrangement and the interest of any person in maintaining confidentiality
with respect to the movement, use etc of the chemicals in question.
New section 69CD creates two offences in relation
to the information obligations under new sections 69CA and 69CB.
A person who fails to provide the information as
required is subject to a fine of up 50 penalty units ($5500): new
subsection 69CD(1).(5) Strict liability applies to
the question of whether the information is required – eg it is no
excuse for a person to say that they were unaware that the information
was required.
The provision of false or misleading information
is subject to a fine of up 300 penalty units ($33 000): new subsection
69CD(3).(6) Specifically, an offence occurs where a
person knowingly provides false or misleading information and fails
both to tell the agency about the relevant deficiencies and
provide the correct information where he or she possesses it, or can
reasonably acquire it. The fault element applying to this ‘failure’
aspect of the offence is recklessness. Presumably this is designed
to place significant responsibility on the provider of information
to ensure that the relevant authorities are given the most accurate
information possible. Strict liability applies to the issue of the
circumstances where the information is provided: eg it is no excuse
that certain (false or misleading) information is provided by accident.
Item 2 substitutes a new version of subsection
69C(1). Existing subsection 69C(1) allows for the making of regulations
to prohibit the importation etc of chemicals when such a requirement
is necessary under a specified international agreement or arrangement.
The new version will allow a prohibition to apply to the ‘use…or any
other dealing’ in addition to the existing situations of import, export
or manufacture. Thus its width is expanded, although the Explanatory
Memorandum to the Bill suggests the purpose of the amendment is
to ‘[provide] for greater clarity of the intent of the subsection’.(7)
Item 6 inserts a consequential amendment to existing subsection
69C(5) which extends the existing offence provisions to the use and
dealing with chemicals which are the subject of regulations made under
new subsection 69C(1).
Item 8 inserts new subsection 69EA(1A) which
deals with record keeping. It provides that a person who imports,
exports, manufactures, uses or deals with chemicals must keep any
relevant records for six years.(8) The Explanatory Memorandum
comments that this provision applies to records that ‘enable the Department
to ascertain whether the relevant sections relating to international
agreements have been complied with’.(9) Failure to retain
records accordingly is subject to a fine of 30 penalty units.
Due to the fact this Bill is due to debated in the
House of Representatives very shortly after its introduction into
Parliament, it has not been possible to research stakeholder views
on the specific provisions of the Bill. However, formal consultations
with stakeholders were conducted during mid-2002 regarding the proposed
ratification of the Rotterdam
and Stockholm Conventions. These consultations and the views of stakeholders
are summarised in the respective National
Interest Analysis accompanying the tabling of the Conventions
before Parliament on 9 September 2003. If the summaries are accurate regarding
stakeholder views, there would appear to be wide support for ratification.
The main concerns seem to relate to the need for ongoing consultation
with respect to implementation of the Conventions in Australia,
particularly in relation to minimising costs of administration etc.
During September and October 2003, the Joint Standing Committee on
Treaties held a very brief inquiry into the Conventions. The resultant
report
recommended that ratification take place for both Conventions.
-
In 2003 the NRA made an administrative decision to change its
name to the Australian Pesticides and Veterinary Medicines Authority
(APVMA), but it is still referred to as the NRA in all relevant
legislation.
-
This is defined in new section 69EAA as the NRA or the
Department. By virtue of section 19A of the Acts Interpretation
Act 1901, ‘the Department’ is the Department that administers
the Act – in this case the Department of Agriculture, Fisheries
and Forestry.
-
There is no indication how far advanced any bilateral or multilateral
discussions would have to be to constitute ‘negotiations’ in this
context.
-
As opposed to importing or exporting.
-
Corporations would be subject to a maximum penalty of 250 penalty
units.
-
Corporations would be subject to a maximum penalty of 1 500 penalty
units
-
P. 10.
-
The same requirement for record keeping applies to existing subsection
69EA(1).
-
P. 11.
