Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2002–2003–2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AGRICULTURAL AND VETERINARY CHEMICALS
(ADMINISTRATION) AMENDMENT BILL 2004
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Parliamentary
Secretary to the Minister for Agriculture, Fisheries and Forestry, Senator the
Hon Judith Troeth)
TABLE OF CONTENTS
The following abbreviations are used in this explanatory
memorandum.
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Administration Act
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Agricultural and Veterinary Chemicals (Administration) Act
1992
|
|
Department
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The Australian Government Department of Agriculture, Fisheries and
Forestry
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NRA
|
|
|
Rotterdam Convention
|
Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for
Certain Hazardous Chemicals and Pesticides in International Trade
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Secretary
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The Secretary to the Australian Government Department of Agriculture,
Fisheries and Forestry
|
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Stockholm Convention
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Stockholm Convention on Persistent Organic Pollutants
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AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION)
AMENDMENT BILL 2004
The Agricultural and Veterinary Chemicals (Administration) Amendment Bill
2004 amends Part 7A of the Agricultural and Veterinary Chemicals
(Administration) Act 1992, which deals with importation, manufacture and
exportation of chemicals. Section 69C of Part 7A was originally included
in the Administration Act in 1993 to meet expected international obligations on
import, manufacture or export of active constituents or chemical products.
In August 2003, the Government announced that it had initiated the
ratification process of two treaties on management of chemicals – the
Stockholm Convention on Persistent Organic Pollutants (the Stockholm
Convention) and the Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International
Trade (the Rotterdam Convention). Both conventions oblige Australia to
undertake certain acts in relation to pesticides, their importation,
exportation, manufacture and use; and also establish certain provisions for the
collection and use of information.
Consequently, the Administration Act
is amended to meet the obligations of the Stockholm Convention and the Rotterdam
Convention. Provisions have been extended to include manufacture, use and other
dealings to meet obligations under both conventions. In drafting these
amendments, it became apparent that there was a gap in the capacity to satisfy
the information requirements of the agreements. In addressing these concerns,
amendments to information collecting provisions will make it very clear which
international agreement, which chemical and what information is sought to meet
international reporting obligations.
It also became apparent that the
information on those chemicals that were under consideration for listing in the
international agreements could not be sought. It is important that Australian
deliberations into the consideration of new information should be fully informed
of the Australian circumstances in order to protect those pesticides that are
important to Australia. The information requirement provisions have been
expanded to meet all information obligations relating to current and future
international agreements. This information requirement provision includes those
that are of importance to Australia’s chemical management, but not yet in
force for Australia or agreements that are still in the negotiation phase. The
information collected will assist Australian deliberations on the chemical
and/or international agreement. Actual requirements will be specified in the
Agricultural and Veterinary Chemicals (Administration) Regulations for each
chemical. Information cannot be sought under the regulations for chemicals that
are not associated with an international agreement; it is not a catch-all
information seeking provision.
Some restructuring of the original
provisions has been carried out to provide greater clarity as to the intent of
the provisions.
The Amendments provide new penalties for not supplying
required information or for supplying false or misleading information. There is
also a requirement to keep records for six years if that information relates to
import, manufacture, use, dealing or export.
The amendments in this Bill will have minimal financial impact on the
Commonwealth budget.
The Bill will have minimal financial impact on
industry. Introduction of information requirements and the inclusion of
manufacture, use and other dealings are to meet convention obligations or
expected obligations and will be limited to only that information that is
required for the specified chemical in the specified international agreement.
Industry is already obliged to keep records and provide data and
information to the NRA. Industry must also retain records for the purpose of
annual returns to the NRA. This Bill extends these known and practised
obligations to the terms of both conventions.
Notes on clauses
1. The short title of the Act is the Agricultural and Veterinary
Chemicals (Administration) Amendment Act 2004.
2. This section provides for the Act to commence on the day after the day
on which it receives Royal Assent.
3. This section states that that each Act specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms. The Schedule is:
10.1 This clause inserts four new sections after section 69B.
Information provisions have been removed from section 69C and extended in these
new sections. These amendments relate to international agreements or
arrangements that impact on chemical management and would be applicable to such
agreements as the Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International
Trade and the Stockholm Convention on Persistent Organic
Pollutants.
10.2 Two sections (sections 69CA and 69CB) relate to
supplying information on importation into Australia, manufacture or use, other
dealings with and exportation from Australia of prescribed chemicals and
products.
10.3 The third section (sections 69CC) allows for the
gathered information to be provided by the relevant agency to a country, an
appropriate authority in a country or to a relevant international organisation
to comply with obligations under international agreements concerning the
movements into or out of Australia, manufacture of, use of or other dealings
with prescribed chemicals. In providing this information, the relevant agency
should take into account the interest of a person in maintaining confidentiality
in relation to their information.
10.4 The fourth section (sections
69CD) introduces offence provisions relating to the supply of information.
1.5 Section 69CA allows regulations to be made to ensure compliance with
information provisions of international agreements or arrangements.
1.6 Subsection (1) allows regulations to be made relating to specific
international agreements, such as the Rotterdam Convention and the Stockholm
Convention and any future relevant agreement to which Australia is a party.
1.7 Subsection (2) outlines the information that may be prescribed to
ensure that Australia can comply with the relevant international agreement or
arrangements. Information under this subsection relates only to those chemicals
included in international agreements to which Australia is a party.
1.8 The information must be prescribed in the regulations for each
specified chemical or chemical product that is within the scope of the
international agreement. The information sought will be limited to what is
required for Australia to meet the obligations of the international agreement;
not all information will be required for all specified chemicals.
1.9 Only those persons carrying out the specified activity will be
required to provide the information; nil returns will not be
necessary.
10.1 Subsection (3) requires that the regulations identify the
relevant international agreement for each specified chemical.
10.2 Subsection (4) requires any person who imports, manufactures, uses,
deals with or exports a chemical specified in the regulations to provide the
prescribed information.
10.3 Note 1 indicates that failure to provide
the specified information or providing false or misleading information may be an
offence.
10.4 Note 2 notes that section 69C may impose
restrictions on import, manufacture, use, dealing or export on the specified
chemical.
10.5 Subsection (5) provides that the information that must
be provided to the relevant agency (defined in new section 69EAA as the
Department or the NRA) is provided in an approved form within the timeframe,
which will be specified in the regulations. For the Stockholm and Rotterdam
Conventions, the relevant agency will be the Department. The format in which
the information should be provided will be set out in a form approved by the
Secretary or prescribed by the regulations.
10.6 Subsection (6) provides for a regulation made for the purposes of
this section to come into force when the relevant international agreement comes
into force for Australia, but not before that time.
10.7 Following the
ratification of an international agreement by Australia, there is usually a
period of time (90 days) before the agreement is binding and obligations have to
be met. This subsection allows the regulations to be made and be ready for when
the agreement enters into force for Australia.
10.8 Section 69CB allows regulations to be made to seek information on an
active constituent or prescribed chemical products relating to international
agreements for which Australia does not have obligations at the time the
information is sought.
10.9 This section outlines the various
circumstances when the required information may be gathered and thereby inform
Australia’s deliberations. Australian deliberations will relate to an
additional chemical being proposed for inclusion in an international agreement
to which Australia is a party; or where an international agreement is not yet in
force for Australia; or the agreement is still in the negotiation phase, but is
of importance to Australia’s chemical management.
10.10 Subsection (1) provides for regulations to prescribe the active
constituent or chemical products that are the subject of international
agreements and for which Australia may not yet have international
obligations.
10.11 Paragraph (1)(a) provides for regulations to identify
a constituent or product that is the subject of an international agreement that
has not entered into force for Australia. Such a circumstance may arise when an
interim arrangement is in force. This is the case with the Rotterdam
Convention, where the signatories to the convention have acted, to various
degrees, to fulfil the convention obligations in the period between the
convention opening for signature and entry into force following 50
ratifications, a period of over five years.
10.12 Paragraph (1)(b)
provides for the regulations to prescribe a constituent or product that is under
consideration.
10.13 Subparagraph (1) (b) (i) provides for the
regulations to prescribe a constituent or product that is under consideration by
an international organisation, or a subsidiary body to an international
organisation, or by Australia together with any other country. It also allows
the prescribing of a bilateral agreement. Such a circumstance may arise when an
additional chemical is being considered for addition to the list of chemicals
under the scope of the convention, or is the subject of a bilateral
agreement.
10.14 Subparagraph (1) (b) (ii) specifies that the
consideration of the chemical is by an international agreement that has not
entered into force for Australia, or an international agreement in its
negotiating phase. Such a circumstance would arise when Australia was
determining whether to participate in such an agreement or was participating in
the negotiation of the text of a new international agreement.
10.15 Subsection (2) identifies the information that may be prescribed in
the regulations in respect of a prescribed constituent or product, similar to
subsection 69CA (2).
10.16 This information will only be sought for any
chemical where relevant to the specified international agreement. Such
information may be sought for chemicals or products whether or not Australia has
legal obligations to provide this information. Such information will inform
Australia’s contribution to that consideration by the relevant
international agreement. Such information may inform Australia’s
negotiating position as was the case in the inclusion of a specific exemption
included in the Stockholm Convention for ongoing use of mirex as a
termiticide.
10.17 Subsection (3) identifies the limits on the source of the
information which may be sought in paragraphs (2)(b) and 2(c) to certain acts of
manufacture, use or other dealing with, a constituent or product.
10.18 Subsection (4) requires any person who imports, manufactures, uses,
deals with or exports, an active constituent or chemical product prescribed in
the regulations in the circumstances outlined in subsection (3), to provide the
prescribed information.
10.19 Only those persons carrying out the
specified activity must provide the prescribed information; nil returns will not
be necessary.
10.20 The Note indicates that a person’s failure to
provide the information, or providing false or misleading information, may
result in the person committing an offence under section
69CD.
10.21 Subsection (5) provides that the information prescribed for
the active constituent or product must be provided to the relevant agency
(defined in section 69EAA as the Department or the NRA) within the timeframe
prescribed in the regulations.
10.22 The information must be provided
by means of an approved form.
10.23 Section 69CC gives the relevant agency, which is defined as the
Department or the NRA, to give information regarding movements into/out of
Australia, the manufacture of, or use of, or any other dealing with a
constituent or product that is prescribed for the purposes of section 69CA or
section 69CB (subsection (1)) to the appropriate authority of a relevant
country, or a relevant international organisation.
10.24 In providing
the information, the relevant agency may take into account the terms of the
international agreement or arrangement and the interests of any person in
maintaining the confidentiality relevant to the relevant information.
1.34 Section 69CD creates offences relating to providing information,
either failing to provide or providing false or misleading information under
sections 69CA and 69CB.
1.35 Subsection (1) identifies the circumstance where a person commits an
offence by not providing the information as required. A penalty of 50 penalty
units applies.
1.36 Strict liability applies to the physical element of
circumstances that the information is required to be provided under sections
69CA and 69CB (subsection (2)).
1.37 The Note indicates to see
section 6.1 of the Criminal Code for strict liability.
1.38 Subsection (3) creates an offence that applies to the provision of
false or misleading information relating to chemicals of concern to
international agreements and consideration of an agreement under sections 69CA
and 69CB and prescribed in the regulations. The penalty is 300 penalty
units.
1.39 Where a person gives, either oral or written information, to
the relevant agency, knowing it to be false or misleading, or produces a
document to the relevant agency knowing the document to be false or misleading
without indicating the deficiencies of the document to the relevant agency or
correcting the information (if in possession of, or can reasonably acquire, the
correct information), that person commits an offence.
1.40 Controls on
exports will be implemented under the regulations and a strong deterrent is
imperative to prevent the providing of false or misleading information. This is
essential as the falsehood would probably only be discovered after export and it
is important that hazardous chemicals are not sent to countries that do not have
the ability to deal with them.
1.41 Offence provisions will only come
into force once regulations have been made. There are no current regulations
that will be impacted by the introduction of these offence
provisions.
1.42 Subsection (4) indicates that the fault element is
recklessness with recklessness defined in the Criminal
Code.
1.43 Strict liability applies to the physical element of
circumstances that the information is required to be provided under sections
69CA and 69CB (subsection (5)).
1.44 The Note indicates to see
section 6.1 of the Criminal Code for strict liability.
2.1 Subsection 69C(1) is repealed and substituted. The subsection
extends the original provisions to include the use of the constituent or product
or any other dealing with the constituent or product. ‘Use and any other
dealing with’ are inserted into the list of activities for which
regulations may be made, to enable control of an active constituent or chemical
product when such a requirement is necessary under a specified international
agreement or arrangement. This provides for greater clarity of the intent of
the subsection.
2.2 The heading of section 69C is replaced to more
clearly reflect the purpose of the section to prohibit import, manufacture, use
or export of certain chemical products under international agreements.
3.1 Subparagraph 69C(2)(a)(iii) is repealed. Information provisions are
now included in the new sections 69CA and 69CB.
3.2 A heading has been
given to subsection 69C(2) to provide greater clarity.
4.1 New subsection (2A) provides for regulations made for the purposes of
subsection (1) to come into force when the relevant international agreement or
arrangement comes into force for Australia, but not before that time.
4.2 Following the ratification of an international agreement by
Australia, there is usually a period of time (90 days) before the agreement is
binding and obligations have to be met. This subsection allows the regulations
to be made and be ready to come into effect when the agreement enters into force
for Australia.
5 These subsections are repealed. Information provisions are included in
the new sections 69CA and 69CB.
6.1 The provisions of subsection (5) are expanded by the inserting
‘use, deal with’. A person must not undertake certain acts in
contravention of a condition or restriction prescribed by the regulations. A
penalty of 300 penalty units will apply to an offence under subsection
(5).
6.2 A heading is given to subsection 69C(5) to provide a descriptor
of the purpose of the subsection.
7 The subsection is repealed. The definition is included in the new
section 69EAA.
8.1 Australia will require certain information to comply with the
provisions of sections 69CA, 69CB and 69C. Subsection (1A) provides that a
person who imports, exports, manufactures, uses or deals with an active
constituent or chemical product must keep any relevant records as evidence of
those acts for six years. The records are those records that enable the
Department to ascertain whether the relevant sections relating to international
agreements have been complied with.
10.1 A penalty of 30 units applies
for not keeping and retaining the relevant records.
10.2 A heading is
provided to subsection 69EA(1) to provide a descriptor of the intent of the
provision.
9.1 This amendment provides that the offence introduced in paragraph (1A)
is an offence of strict liability.
9.2 A new heading of ‘Strict
liability’ is given to subsection 69EA(2).
10.1 A new section, 69EAA, providing for definitions is inserted. Two
new definitions are included and one definition is inserted having been moved
from section 69C (6).
10.2 The new definition of approved
form means a form which has been approved by the Secretary or prescribed in
the regulations.
10.3 The new definition of deal with active
constituent or chemical product includes the act of supply or otherwise dispose
of the constituent or product.
10.4 The definition of relevant
agency, repealed in clause 7, is inserted into this new section of
definitions. The definition is unchanged.