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Bills Digest no. 4 2006–07
Agriculture, Fisheries and Forestry Legislation Amendment (Export
Control and Quarantine) Bill 2006
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
Agriculture,
Fisheries and Forestry Legislation Amendment (Export Control and Quarantine)
Bill 2006
Date introduced: 15 June 2006 House: House
of Representatives
Portfolio: Agriculture, Fisheries and Forestry
Commencement: The formal provisions commence
on Royal Assent. Amendments to the Export Control Act 1982 commence
28 days after Royal Assent and amendments to the Quarantine Act 1908
commence the day after Royal Assent.
To
amend the Export Control Act 1982 and the Quarantine Act 1908
in order to:
- provide a legal basis for the recovery of fees for quarantine services
provided under the Quarantine Act to other Commonwealth bodies
- clarify the Commonwealth’s authority to regulate the sourcing of
fish intended for export
- create four new offences in the Export Control Act, including two
strict liability offences, in relation to the preparation of goods for
export, and
- amend the regulation-making power within the Export Control Act to
allow fees to be charged for services provided by the Secretary or the
Secretary’s delegate.
The Export Control Act sets up a regime for the export inspection of
prescribed goods. These goods include meat, fish, fresh fruit and vegetables,
dairy produce and grains. Inspection is conducted by authorised officers
of the Australian Quarantine and Inspection Service (AQIS). The purpose
of the inspection is to ensure that the goods which are to be exported
meet the strict requirements set out in the orders made pursuant to the
regulations made under the Export Control Act. These requirements are
aimed at ensuring fitness for human consumption, quality and accurate
trade description of the goods.
Successive Governments have taken a serious view of malpractice in the
export food industry.(1) They have argued that any malpractice
that may endanger the reputation of Australia’s
export industries and jeopardise overseas markets for Australian goods
must be strongly deterred. The Export Control Act includes penalties for
false declarations and trade descriptions, and grants extensive regulation-making
power to the Governor-General including penalties for offences against
the regulations. This Bill creates four new offences, including two strict
liability offences, to deal with those people who fail to ensure that
goods are prepared for export in accordance with the legislation. In her
second reading speech, the Parliamentary Secretary said that:
The creation of four new offence provisions is in response
to a serious gap in the Export Control Act. Currently, the offence provisions
in the Act focus on persons involved with goods in the post-preparation
phase with the result that persons who are the occupiers of establishments
where the preparation of the goods occurs are immune from the serious
penalties that apply to other offenders under the Act. The new offences
focus on the person responsible for the preparation of the goods for export.(2)
The Bill also extends the definition of ‘preparation’ to include fish
and clarifies that the Commonwealth has appropriate legal authority to
regulate the sourcing of fish for export. According to the Explanatory
Memorandum, the authority to regulate the sourcing of fish is necessary
to ensure ongoing access for exported fisheries products into overseas
markets and to protect consumers by ensuring that fish, including shellfish
are harvested from areas that do not contain pathogenic organisms, biotoxins
and chemical contaminants at levels that may represent a threat to consumer
health.(3)
Australia
is a relatively small producer and exporter of fisheries products. According
to information published by the Australian Bureau of Agricultural and
Resource Economics (ABARE) in March 2006,(4) Australian exports
of fisheries products fell by 7 per cent to $1.5 billion in 2004-05, continuing
the recent trend of declining export values for Australian fisheries products.
Over the four years to 2004-05 the total value of exports fell by 36 per
cent, from a peak of $2.4 billion in 2000-01. Both edible and nonedible
exports declined in value over this period, by 35 per cent and 36 per
cent respectively.(5) The main exported products in terms of
value were rock lobsters (28 per cent of gross value of fisheries exports),
pearls (19 per cent), abalone (17 per cent), whole tuna (11 per cent)
and prawns (11 per cent).
Of the $2.1 billion of fisheries products produced in Australia
in 2004–05, wildcaught fisheries accounted for $1.4 billion or 70 per
cent. Major aquaculture species in Australia
include southern bluefin tuna, pearls, Atlantic salmon, prawns and oysters.
These five products accounted for 82 per cent of the value of total aquaculture
production in 2004–05.(6)
AQIS is part of the Department of Agriculture, Fisheries and Forestry
and its broad objective is to protect Australia’s
animal, plant and human health status and maintain market access through
the delivery of quarantine and export services.(7) The cost
of AQIS programs in 2004–05 was $316.185 million.(8) AQIS’
activities are primarily funded by a combination of cost-recovery (industry
charges) and government appropriation. Revenue recovered through fees
and charges contributed $150.370 million or 48 per cent of total revenue.
Revenues from the Australian Government contributed $153.299 million (also
approximately 48 per cent), while the remaining $12.516 million or approximately
4 per cent was received from other sources, such as interest earned on
reserve accounts.(9)
The majority of AQIS’ non-cost-recovered activities comprise large-scale
community service obligations, the costs of which are met by Government.
Examples include compliance, and activities conducted under the Northern
Australia Quarantine Strategy. AQIS undertakes cost-recovery to assist
with meeting the costs of thirteen programs.(10) The Australian
Government’s requirements have changed since cost-recovery was first introduced
for AQIS in 1979. Initially AQIS was required to recover 50 per cent of
the cost of providing services. It was required to recover 60 per cent
of costs from 1 July 1988,
and 100 per cent from 1991 until August 2001. In August 2001, the Government
reduced the recovery amount for AQIS export programs to 60 per cent of
costs.(11) The Government provides the remaining 40 per cent.
Import programs are still required to recover 100 per cent of their costs
from clients. Details of AQIS’ fees and charges are to be found on their
website. In 2000 and 2003, the
Australian National Audit Office examined the accuracy and effectiveness
of the cost recovery systems employed by AQIS.(12)
The Explanatory Memorandum states that this Bill is not expected to have
any financial impact on the Government. Any extra revenue raised by AQIS
as a result of the Bill will come from other Commonwealth agencies, so
the net result to the Government will be nil.
Items 1 to 5 of Schedule 1 amend definitions in
section 3 of the Export Control Act. Item 1 inserts a new definition
of the word ‘fish’ that includes all aquatic vertebrates, such as crocodiles,
and all aquatic invertebrates such as prawns, mussels and scallops. Item
2 extends the definition of ‘premises’ to include places in or on
the water. The extended definition is necessary because of the extension,
in item 3, of the word ‘preparation’ to include the capturing or
taking of fish, whether from the wild or from stocks maintained using
aquaculture. According to the Explanatory Memorandum, the amendments proposed
by items 1 to 3 remove any doubt that the Commonwealth has
a level of control over the sourcing of fish intended for export.(13)
Item 4 inserts a new definition of the expression ‘registered establishment’.
This expression replaces the term ‘registered premises’ which is repealed
by item 5.
Part 2 of the Export Control Act regulates the export of prescribed goods
and imposes penalties for non-compliance with its provisions, including
for malpractice and fraudulent behaviour. In 2001, Parliament passed the
Agriculture, Fisheries and Forestry Legislation Amendment (Application
of Criminal Code) Act 2001 that revised the criminal offence provisions
in legislation administered by agencies within the Agriculture, Fisheries
and Forestry portfolio in order to harmonise the provisions with the principles
of criminal responsibility set out in Chapter 2 of the Criminal Code
Act 1995.(14) The principles of criminal responsibility
are divided into physical elements and fault elements. The physical elements
of an offence are matters such as conduct, the circumstances in which
conduct occurs or the result of the conduct. Fault elements relate to
a person’s state of mind, for example, intention, knowledge, recklessness
and negligence. For each physical element of an offence, the prosecution
must prove that the defendant had the requisite fault element, if proof
of a fault element is required.
Item 6 inserts four new offence provisions that will apply to
a person or entity 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.
The offence provisions fall into two general categories: one category,
new section 8A, deals with 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, 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. This arrangement mirrors the way in which certain
offences are already dealt with in the Export Control Act. Strict liability
means that the prosecution does not have to prove a fault element in relation
to all or some of the physical elements of the offences, only that the
defendant engaged in the relevant physical elements of the offence. 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 ($6,600) for an individual, or five times this
amount for a company. According to the Explanatory Memorandum,(15)
the level of penalty for the first two offence provisions is consistent
with the penalties for existing offences in section 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.(16)
Items 7 to 16 make technical amendments that are minor
and required as a consequence of the replacement of the expression ‘registered
premises’ with ‘registered establishment’ throughout the Export Control
Act.
Item 17 inserts a new paragraph in subsection 25(2) that 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. According to the
Explanatory Memorandum, ‘[a]s 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’.(17)
Item 1 of Schedule 2 inserts a new section 86EA
in the Quarantine Act.
New subsection 86EA(1) imposes a notional liability on the Commonwealth
to pay fees specified in a determination made under existing subsection
86E(1B) of the Quarantine Act for quarantine services. New subsections
86EA(2)-(3) empower the Finance Minister to give such legally-binding
written directions as are necessary or convenient for carrying out or
giving effect to this new notional liability, including the transfer of
money between or within Commonwealth financial accounts. The intent of
these amendments is that, under the Finance Minister’s directions, AQIS
will have the legal authority to require payment from agencies and other
Commonwealth bodies for quarantine services provided, and those agencies
and bodies will have the legal authority to make payments to AQIS for
quarantine services.
The Finance Minister’s written directions are not legislative instruments
for the purposes of the Legislative Instruments Act 2003 (new
subsection 86EA(4)) which means that they are not liable to disallowance
by Parliament.
Item 2 provides that new section 86EA will apply to quarantine
fees that are incurred on or after the commencement of this Schedule,
that is, the day after this Act receives Royal Assent.
Endnotes
- The current Act arose out of events in the early 1980s. In August
1981 discoveries were made in the United
States of horse meat having been substituted
for beef by an Australian meat export establishment. The reputation
of the Australian meat industry was severely tarnished. (See Royal Commission
into the Australian Meat Industry, Report, 1982). In response
to the ‘meat substitution scandal’ the Customs (Unlawful Exportation
of Food) Act 1982 and the Meat Export (Penalties) Act
1982 were enacted. These Acts were replaced by the Export Control
Act 1982 which commenced operation on 1
January 1983.
- Ley, Hon. Sussan, Parliamentary Secretary to the Minister for Agriculture,
Fisheries and Forestry, ‘Second reading speech: Agriculture, Fisheries
and Forestry Legislation (Export Control and Quarantine) Bill 2006’,
House of Representatives, Debates, 15 June 2006, p. 1.
- Explanatory Memorandum, Agriculture, Fisheries and Forestry Legislation
Amendment (Export Control and Quarantine) Bill 2006, p. 4.
- ‘Economic status of fisheries: better times ahead for Australian
producers’ [paper presented at the National Outlook Conference, Outlook
2006, Canberra,
28 Feb-1 Mar 2006, Australian Bureau
of Agricultural and Resource Economics, Australian commodities 2006,
March quarter, p. 5. Available at: http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=miscitem&Criteria=CITATION_ID:535J6%3B
(site visited 5/7/2006)
- ibid., p. 6.
- ibid., p. 5.
- Department of Agriculture, Fisheries and Forestry, AQIS at a glance,
available online at: http://www.daff.gov.au/content/output.cfm?ObjectID=637FF0C5-C305-43BD-9216486B57110266
(site visited 6 July 2006).
- Department of Agriculture, Fisheries and Forestry, Annual report
2004-05, p. 354. AQIS has its own set of financial statements in the
Department of Agriculture, Fisheries and Forestry Annual Report.
- ibid.
- Australian National Audit Office, ‘AQIS cost-recovery systems follow-up
audit: Australian Quarantine and Inspection Service’, ANAO, 2003, Audit
Report No. 17, 2003-2004, p. 22.
- Hon. Warren Truss, Minister for
Agriculture, Fisheries and Forestry, ‘Coalition slashes export charges’,
[Press Release], 2 November 2001. The reduction in fees
and charges came into effect on 1 November 2001.
- Australian National Audit Office, ‘AQIS cost-recovery systems: Australian
Quarantine and Inspection Service’, ANAO, 2000, Audit Report No.
10, 2000-2001; Australian National Audit Office, ‘AQIS cost-recovery
systems follow-up audit: Australian Quarantine and Inspection Service’,
ANAO, 2003, Audit Report No. 17, 2003-2004.
- Explanatory Memorandum, Agriculture, Fisheries and Forestry Legislation
Amendment (Export Control and Quarantine) Bill 2006, pp. 3-4.
- For more details on this Act see James Prest, ‘Agriculture, Fisheries
and Forestry Legislation Amendment (Application of Criminal Code) Bill
2001’, Bills Digest No.20 (2001-2002).
- Explanatory Memorandum, p. 6.
- ibid., p. 6.
- ibid., p. 7.
Rosemary Bell
14 July 2006
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
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 2006
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Published by the Parliamentary Library, 2006.
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