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Bills Digest No. 158 2002-03
Export Control
Amendment Bill 2003
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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Export
Control Amendment Bill 2003
Date Introduced: 27 March 2003
House: House
of Representatives
Portfolio: Agriculture, Fisheries and Forestry
Commencement: The clause referring to the offences of providing false or misleading
information or documents will commence immediately after the commencement
of Schedule 2 to the Criminal Code
Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000, and
the changes to the description of goods that originate from Christmas
Island or the Cocos (Keeling) Islands on certificates issued in relation
to goods for export will commence on Proclamation, or if not proclaimed
within 6 months of Royal Assent, on the first day after the end of that
period.
To amend the Export Control Act 1982 for two purposes:
- to redraft the section referring to the offences of providing false
or misleading information or documents, and
- to allow certificates issued in relation to goods for export to specify
when goods originate from Christmas Island or
the Cocos (Keeling) Islands.
The Export Control
Act 1982 (the 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 under the 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.(2)
The 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 redrafts the references
in the section on offences, replacing it with references in the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act
2000.
The World Trade Organisation’s (WTO) quarantine agreement
(the Sanitary and Phytosanitary Agreement or SPS Agreement) allows all
current 141 WTO members, including Australia, to set their own level of
quarantine protection. Under this
agreement, quarantine measures must be based on scientific principles
and must not include unfair restrictions designed to prevent or restrict
trade. Australia
has been able to negotiate favourable quarantine access conditions to
international markets for agricultural exports because of our relative
freedom from pests and diseases that exist elsewhere in the world. According to the Department of Agriculture,
Fisheries and Forestry, Australia
has been successful in gaining access to many new markets for animal,
plant and food products during the past five years.(3) The
National Food Industry Strategy (NFIS) Ltd. reported in March 2003 that
the food industry accounted for 22 per cent of sales of Australian products
overseas and that food exports, both processed and unprocessed, were valued
at more than $26 billion in the 2001-2002 financial year.(4)
Christmas Island
and Cocos (Keeling) Islands
This Bill concerns the
description of prescribed goods, including meat, fish, fresh fruit and
vegetables, that originate on Christmas Island
or the Cocos (Keeling) Islands and are being exported. Little food is produced in either territory.
On Christmas Island food supplies are imported
both from Asia and from mainland Australia.(5) In 1999 it was reported that, on the Cocos (Keeling)
Islands, a small farm produced some fruit and vegetables
commercially, and that there was some private production for home consumption.(6)
However, practically all food consumed on the Cocos (Keeling) Islands
came from mainland Australia.(7)
The Christmas Island economy currently
centres on phosphate mining, government services and tourism.(8) Since the closure of the Christmas Island Resort
and Casino in 1998 after four and a half years of operation, tourism has
been almost entirely driven by the unique flora and fauna within the National
Park and surrounding seas.(9) The Asia Pacific Space Corporation
(APSC) still has plans to build a satellite launching facility on Christmas
Island. It has contracts
with Russian suppliers for rocket launchers.(10) Nothing has
been built so far.(11) In
March 2002 the Government announced that it planned to build a permanent
immigration reception and processing centre to accommodate up to 1200
detained asylum seekers.(12) The size of this facility was
scaled down to 800 places in February 2003.(13) A project manager
has recently been selected for the construction(14) but no
date has been given for completion of the centre.
Copra provided the initial base for the Cocos (Keeling)
Islands economy but commercial production ceased
in the 1980s as a result of low international prices and high production
costs.(15) In a report published in 1999, the Commonwealth
Grants Commission said that economic activity on the Cocos (Keeling) Islands
was extremely limited.(16) The major areas of economic activity
were the provision of government and commercial services, the main outlet
for the latter being through the Cocos Co-Operative Society Ltd.
According to the Grants Commission report, a small horticultural
enterprise had operated on Cocos since the late 1980s. It had received ‘substantial levels of Commonwealth
assistance at least in the developmental stages’.(17) Several aquaculture and fisheries projects have
also been trialled on the Cocos (Keeling) Islands. These include a pilot project to grow giant
clams for export, a research project on black lipped pearl farming, and
the creation of a joint venture between the Cocos Islands Co-Operative
Society Ltd. and a tuna fishing company from the mainland.(18)
The current status of all these projects is not
known.
The Minister said
in his second reading speech on this Bill
that the external territories of Christmas Island
and Cocos (Keeling) Islands do not enjoy the same
relative freedom from agricultural pests and diseases as do other parts
of Australia.(19)
The purpose of this Bill is to ensure that any prescribed goods for export,
including fish, fruit and vegetables that originate on Christmas Island
or the Cocos (Keeling) Islands, are not described as coming ‘from Australia’. Instead, they will be described on the export
certificates as coming from the ‘Australian Territory
of Christmas Island’ or from
the ‘Australian Territory
of Cocos (Keeling) Islands’.
Item 1 of
Schedule 1 amends subsection 11Q(5) of
the Export Control Act 1982.
This subsection deals with the offences of making false or misleading
statements in information or documents concerning goods prescribed under
the Act that have been, or are to be, exported.
The purpose of the amendment proposed by item
1 is to remove the reference to ‘section 16’ in subsection 11Q(5)
of the Act and to replace it with references to the relevant offences
provided by subsection 137.1 ‘False or misleading information’ and subsection
137.2 ‘False or misleading documents’ in the Criminal Code.
These offences were added to the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery
and Related Offences) Act 2000 and came into effect during 2001.
Item 2 excises
Christmas Island and Cocos (Keeling) Islands
from the definition of ‘Australia’
in the Act. Item 3 provides for separate certification arrangements to be made
for goods to be exported from Christmas Island
or Cocos (Keeling) Islands. It also specifies who
may issue the certificates in respect of goods originating in Christmas
Island or Cocos (Keeling) Islands. Item
3 provides that a certificate may state that the goods are from the
‘Australian Territory
of Christmas Island’ or the ‘Australian
Territory of Cocos (Keeling)
Islands’. According to the Explanatory Memorandum, the
purpose of this provision is to clearly establish a link to Australia
without compromising Australia’s
pest or disease status in overseas markets.(20)
There
may be some connection between this Bill and an earlier piece of proposed legislation,
the Agriculture, Fisheries and Forestry Legislation Amendment Bill (No.
1) 2002 (the AFFA Bill), that is still before the Parliament.(21) One purpose of the AFFA Bill is to amend the
Quarantine Act 1908 (Quarantine Act) in
order extend the Australian quarantine regime to Christmas Island. When
he introduced the AFFA Bill on 29
May 2002,
the Minister said in his second reading speech that:
This bill will extend
the Quarantine Act 1908 to Christmas Island in accordance with the government’s policy
to align conditions and standards in the Indian Ocean territories with those of comparable communities
in the rest of Australia. The
Quarantine Act already extends to the Cocos (Keeling) Islands. These
amendments will extend the Quarantine Act to Christmas Island in the same way as the act has been extended
to the Cocos (Keeling) Islands.
…..
In recognition of the
differences in the pest and disease status between the mainland of Australia and Christmas Island, the bill will ensure that appropriate quarantine
barriers continue to exist between Christmas Island and mainland Australia. At
the same time, this approach will give Christmas Islanders the flexibility
to determine a level of protection that best suits them, having regard
to their own trading needs and the island’s unique pest and disease status.
(22)
Both
the present Bill and the AFFA Bill may be seen in the context
of the commitment of successive Governments to:
- align conditions and standards in the
Indian Ocean Territories with those of comparable communities
in the rest of Australia, and
- provide the residents of the Indian Ocean Territories, over time, with rights, opportunities
and responsibilities equal to those of their fellow Australians.
The
range of measures to achieve these goals were first set out in agreements
signed on behalf of the Commonwealth by the then Prime Minister, Hon Bob
Hawke, with the leaders of the Christmas Islands and Cocos (Keeling) Islands
communities in 1991.
- 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.
- See for example debates on previous amendments
to the Export Control Act 1982
including the Second Reading Speeches on the Export Control Amendment
Bill 1991, Senate, Hansard,
30 May 1991, p. 3896 and 5339.
- www.affa.gov.au
- ‘Food exports up and down’, National Food
Industry Strategy Ltd., Media
Release, 11 March 2003 at www.nfis.com.au >>News & Events >> Media
releases. See also Composition
of Trade, Australia 2002, Market Information and Analysis Section,
Department of Foreign Affairs and Trade, May 2003, Table 3: ‘Australia’s
merchandise trade by broad category’, p. 23.
- Commonwealth Grants Commission, Report on Indian
Ocean Territories, Canberra 1999, p. 17.
- ibid., p. 13.
- ibid., p. 17.
- The following sources provide information
on economic activity on Christmas Island:
Bureau of Transport Economics (Australia), Christmas Island regional
analysis: Report prepared for the Indian
Ocean Territories Review,
December 1998
Commonwealth Grants Commission, Report
on Indian Ocean Territories, Canberra 1999
Indian Ocean Territories Review, [conducted jointly by the Department of Transport
and Regional Services and the Department of Finance and Administration],
January 1999.
- Commonwealth Grants Commission, Report on Indian Ocean Territories,
op. cit., p. 14.
- Laura Tingle, ‘Cash flood puts island at
risk’, Australian Financial Review,
1 July 2002, and Hon Ian Macfarlane, Minister for Industry, Tourism
and Resources, ‘Moscow space talks bring lift-off a step closer’, Media Release, 14 July
2002.
- Senator Trish Crossin, Senator for the Northern Territory, ‘Island not so rosy’, Letter to the Editor, Northern Territory News, 5 April
2003, p. 11.
- Hon Philip Ruddock, Minister for Immigration
and Multicultural and Indigenous Affairs, ‘Permanent immigration facility
for Christmas Island’, Media Release, 12
March 2002.
- Hon Philip Ruddock, Minister for Immigration
and Multicultural and Indigenous Affairs, ‘Re-Tender for Christmas Island
Immigration Centre’, Joint Media
Release with Minister for Finance and Administration, Senator Nick
Minchin, MPS 9/2003, 19 February 2003.
- Senator Nick Minchin, Minister for Finance and Administration, ‘Project Manager appointed
for construction of Christmas Island Immigration Reception and Processing
Centre’, Media Release, 9 May 2003.
- Bureau of Transport Economics (Australia), Cocos
(Keeling) Islands
regional analysis: Report prepared for the Indian
Ocean Territories
Review, December
1998, p. 17.
- Commonwealth Grants Commission, Report on Indian Ocean Territories,
op. cit., p. 12.
- ibid., p. 13.
- ibid., p. 14 and Bureau of Transport Economics
(Australia), Cocos
(Keeling) Islands
regional analysis: Report prepared for the Indian
Ocean Territories
Review, op. cit.,
p. 21.
- Hon Warren Truss, Minister for Agriculture,
Fisheries and Forestry, ‘Second Reading Speech’, Export Control Amendment
Bill 2003, House of Representatives, Debates, 27 March 2003, p. 13426.
- Explanatory
Memorandum, Export
Control Amendment Bill 2003, p. 3.
- The Agriculture, Fisheries and Forestry
Legislation Amendment Bill (No. 1) 2002 was introduced into the House
of Representatives on 29 May 2002 and the second reading adjourned on the
same day. On 18
September 2002
the Senate Scrutiny of Bills Committee recommendation was adopted and
the provisions of the Bill
were referred to the Senate Rural and Regional Affairs and Transport
Legislation Committee. The Committee
reported on 12 November 2002. On
11 February 2003 the House of Representatives referred
the Bill to the Main Committee.
- Hon Warren Truss, Minister for Agriculture,
Fisheries and Forestry, ‘Second Reading Speech’, Agriculture, Fisheries
and Forestry Legislation Amendment Bill (No. 1) 2002, House of
Representatives, Debates,
29 May 2002, p. 2559.
Rosemary Bell
28 May 2003
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2003
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