Export Control Bill 2019 [and associated Bills]

Bills Digest No. 88, 2019–20
PDF version [1067KB]

Paula Pyburne
Law and Bills Digest Section
26 February 2020

Contents

The Bills Digest at a glance
History of the Bills
Purpose of the Bills
Structure of the Bills
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
General features of the Export Control Bill
Chapter 2—exporting goods
Setting generic requirements
Accredited properties
Export permits
Chapter 8—other matters relating to export
Chapter 9—powers and officials
Chapter 10—compliance and enforcement
Chapter 11
Cost recovery
Charges Imposition Bills
Concluding comments

Date introduced: 4 December 2019
House: House of Representatives
Portfolio: Agriculture
Commencement: Export Control Bill—sections 1 and 2 commence on Royal Assent; sections 3 to 432 commence on Proclamation or at 3 am (ACT time) on 28 March 2021, whichever occurs later.

Consequential Amendments Bill—sections 1–3 commence on Royal Assent; Schedules 1–3 are contingent on, and commence at the same time as, the Export Control Bill.

The Export Charges Amendment Bills all commence at the same time as section 3 of the Export Control Bill.

Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the Bills’ home pages for the Export Control Bill 2019; the Export Control (Consequential Amendments and Transitional Provisions) Bill 2019; the Export Charges (Imposition-Excise) Amendment Bill 2019; the Export Charges (Imposition-Customs) Amendment Bill 2019 and the Export Charges (Imposition-General) Amendment Bill 2019 or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2020.

The Bills Digest at a glance

Background

Australia’s existing legislative framework for agricultural production and certification of exports (including fish, forestry, fibre and food products) has developed over 35 years and currently comprises 17 Acts (including the Export Control Act 1982 and the Australian Meat and Live-stock Industry Act 1997) and more than 40 legislative instruments. These include legislative instruments which regulate the export of fish, eggs, dairy, beef, lamb, goat, rabbit and pig meat, poultry meat, wild game meat, ratite (for example, emu) meat, live animals (including livestock), and plants and plant products.

Legislative package

This Bills Digest relates to a package of Bills comprising:

the Export Control Bill 2019
the Export Control (Consequential Amendments and Transitional Provisions) Bill 2019
the Export Charges (Imposition—Excise) Amendment Bill 2019
the Export Charges (Imposition—Customs) Amendment Bill 2019 and
the Export Charges (Imposition—General) Amendment Bill 2019.

The purpose of the legislative package is to create an overarching legislative framework which will regulate the export of goods from Australian territory. This will replace the existing regulatory scheme, with seventeen export-related Acts repealed as part of this package.

The Bills will operate so that relevant details are set out in rules.

Stakeholder support

The Bills have been subject to extensive consultation and most, though not all, stakeholders are supportive of the Bills which will consolidate the array of Acts, Regulations and Orders that currently govern the export of Australia’s agricultural exports into a more cohesive framework.

The Bills were referred to the Senate Standing Committee on Rural and Regional Affairs and Transport for inquiry and report. The Committee recommended that the Bills be passed.

History of the Bills

The Export Control Bill 2017 (the first Bill) was introduced into the Senate on 7 December 2017.[1] Although some second reading debate on the first Bill took place on 5 February 2018, no further action was taken. The first Bill lapsed when the 45th Parliament was prorogued.

The first Bill was not referred to Committee for inquiry and report and no Bills Digest was published in relation to that Bill.

Although the Export Control Bill 2019 (the Bill) has a similar structure to the first Bill, its provisions have been substantially amended and so are not in equivalent terms to those in the first Bill.

Purpose of the Bills

This Bills Digest relates to a package of Bills comprising:

the Export Control Bill 2019 (the Export Control Bill)
the Export Control (Consequential Amendments and Transitional Provisions) Bill 2019 (Consequential Amendments Bill)
the Export Charges (Imposition—Excise) Amendment Bill 2019
the Export Charges (Imposition—Customs) Amendment Bill 2019 and
the Export Charges (Imposition—General) Amendment Bill 2019

The purpose of the suite of Bills is to create an overarching legislative framework which will regulate the export of goods from Australian territory. The Bills will operate so that relevant details are set out in rules.

The Consequential Amendments Bill repeals 17 separate statutes including the existing Export Control Act 1982 so that all exports can be regulated under the one Act.

The three remaining Bills, the Export Charges (Imposition—Excise) Amendment Bill 2019, the Export Charges (Imposition—Customs) Amendment Bill 2019 and the Export Charges (Imposition—General) Amendment Bill 2019 amend the Export Charges (Imposition—Excise) Act 2015, the Export Charges (Imposition—Customs) Act 2015 and the Export Charges (Imposition—General) Act 2015 respectively to create a legal structure for the recovery of costs through the imposition of charges as a cost recovery levy.

Structure of the Bills

The Export Control Bill comprises 11 Chapters:

Chapter 1 sets out preliminary matters including relevant definitions
Chapter 2 is about exporting goods including goods which are prohibited or temporarily prohibited from export; the issue of government certificates in relation to certain goods that are to be exported; and offences and penalties arising under that Chapter
Chapter 3 sets out the framework for accreditation of properties for a kind of export operations including the manner in which an application is to be made; the conditions which may apply to an accreditation; and the powers to vary or revoke accreditation
Chapter 4 is about the registration of establishments for a kind of export including the conditions which may apply to registration and the powers to vary or revoke registration
Chapter 5 relates to the approval of a proposed arrangement for certain kinds of export operations including the conditions to which the arrangement may be subject to conditions and the manner in which the approval of the arrangement may be varied or revoked
Chapter 6 is about export licences
Chapter 7 is about export permits
Chapter 8 sets out other matters relating to export including when, and in what form a notice of intention to export a consignment of goods is required
Chapter 9 sets out the Secretary’s power to require an audit of export operations or the performance of functions and the exercise of powers by certain persons under the Export Control Act
Chapter 10 sets out the compliance and enforcement regime for the Act and
Chapter 11 contains miscellaneous provisions including in relation to the making of applications, review of decisions and confidentiality of information.

The Consequential Amendments Bill comprises three Schedules:

Schedule 1 provides for the repeal of certain statutes which will be redundant with the enactment of the Export Control Act
Schedule 2 sets out consequential amendments and
Schedule 3 contains application, saving and transitional provisions.

Together, the Bills amount to more than 560 pages of legislative amendments. That being the case, this Bills Digest does not analyse the content of each and every section in the Bills. Instead, it highlights the key features in the Bills with a view to providing an overview of their intent and operation.

Background

The genesis of the Export Control Act 1982 (the current Export Control Act) lies in Australia’s meat substitution scandal which came to light in August 1981. Addressing the Senate in relation to the scandal, Senator Fred Chaney stated:

This statement is to advise the Senate in detail of the measures undertaken by the Government, following the confirmed finding on 13 August 1981 of horse meat in a shipment of Australian boneless beef to the United States of America. This discovery, coupled with the finding in Melbourne on 21 August of kangaroo meat in cartons marked for export as boneless beef, is an extremely grave matter. The Government is determined to have all the facts of this case brought to light, to stamp out this kind of activity, to prosecute those involved, and to ensure that all possible measures are taken to prevent such activity from happening again. The tragedy of this case is the immense damage it has caused to the reputation of our meat industry, both here and overseas.[2] [emphasis added]

The resulting Royal Commission into the Australian Meat Industry conducted by Mr Justice Woodward set out the problem as follows:

The main question which the Royal Commission has been asked to answer is how widespread have malpractices been in the meat industry in recent years.

...[I am] conscious of the fact that a longer and more detailed investigation than has been possible in the time available, would undoubtedly have revealed many more transgressions; and the prevalence of commercial malpractice disclosed by the evidence—at all levels of the industry—constitutes a very serious problem. In particular, large quantities of meat, from animals killed more cheaply at non-export abattoirs, have found their way onto export markets, and the quality, age or other characteristics of export meat have often been falsely described.[3]

The response to the Royal Commission was swift. Introducing the originating Bill for the current Export Control Act, the Minister for Primary Industry stated:

The purpose of this Bill is to establish a new and comprehensive legislative base for the export inspection and control responsibilities within my portfolio. Under existing arrangements, export inspection powers are drawn from the Customs Act 1901 and the Commerce (Trade Descriptions) Act 1905. This has created a number of administrative and legal weaknesses ...[4]

2015 Review

In July 2015, the Department of Agriculture circulated a discussion paper about the future of agricultural export regulation.[5] The discussion paper stated that the Department was undertaking a review to assess whether the existing export regulation:

meets the needs of industry and government today and into the future
is flexible and enables industry and government to respond to a range of situations and contemporary issues
ensures that importing country requirements are met without imposing an unnecessary regulatory burden on users of the system and
is clear, transparent and easy to understand.[6]

Following on from the discussion paper and resultant feedback, a report was published in May 2016.[7] That report indicated that ‘the majority of stakeholders are comfortable with the current level of agricultural export regulation’ but would like to see improvements made to the regulation, such as aligning requirements with importing country requirements and increased flexibility.[8]

Rationale for the Bill

The Explanatory Memorandum to the Export Control Bill sets out the rationale for the Bill at this time:

Australia’s existing legislative framework for agricultural production and certification of exports (including fish, forestry, fibre and food products) has developed over 35 years and currently comprises 17 Acts (including the Export Control Act 1982 and the Australian Meat and Live-stock Industry Act 1997) and more than 40 legislative instruments. This includes legislative instruments which regulate the export of fish, eggs, dairy, beef, lamb, goat, rabbit and pig meat, poultry meat, wild game meat, ratite (e.g. emu) meat, live animals (including livestock), and plants and plant products ...

Many of the legislative instruments that support the existing export certification framework are due to sunset (cease to be law) on 1 April 2021 in accordance with the requirements of the Legislation Act 2003. This deadline provided the opportunity to review those legislative instruments as part of a broader review of the entire agricultural exports legislative framework, which took place in 2015 (the Review).[9]

Consultation

The Department states that the Export Control Bill has been the subject of extensive consultation:

The department has engaged with supply chain participants and other stakeholders through a range of channels. The department has used its website extensively to provide information and draft legislative documents, and to seek feedback. Consultation has also occurred directly with peak industry bodies, though established departmental-industry consultative committees, via email and at face-to-face workshops and seminars.[10]

Committee consideration

Senate Rural and Regional Affairs and Transport Committee

The Bills were referred to the Senate Rural and Regional Affairs and Transport Committee (RRAT Committee) for inquiry and report by 7 February 2020.[11] The RRAT Committee received six submissions.

In its report, the RRAT Committee recommended that each of the Bills in the legislative package be passed.[12]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) has reiterated its comments in relation to the first Bill.[13] Those comments are canvassed below in the context of the provisions to which they relate.[14]

Policy position of non-government parties/independents

Australian Labor Party (ALP) members of the RRAT Committee supported the package of Bills but made additional comments expressing support for the concerns of some submitters ‘about the compliance costs of meeting regulatory and operational requirements, such as preparing for audits and addressing documentation requirements’. They urged the Government to work closely with agriculture sectors during the development of commodity-specific rules.[15]

Position of major interest groups

Submitters to both the RRAT Committee’s inquiry into the Bills in the legislative package and to the Department of Agriculture’s discussion paper have made comments which reflect their involvement in the export of goods from Australia. That being the case some submitters were very much in favour of the changes in the Bills whilst others considered that the Bills would not bring about better outcomes.

For instance, Grain Trade Australia (GTA) has stated that it ‘has no significant issues in relation to the content of the draft Bill’ and that it is supportive of the Bills’ intent of ‘consolidating the array of Acts, Regulations and Orders that currently govern the export of Australia’s agricultural exports into a more cohesive framework ...’.[16]

On the other hand, the Australian Livestock Exporters’ Council which represents Australia’s livestock export sector expressed its concern about:

... the high risk of poor and unfair regulatory outcomes from critical ambiguity, inefficiencies and inappropriate obligations or sanctions inherent in [the Export Control] Bill. This will have a significant impact on the commerciality of parts of the sector as we are an industry that runs on incredibly tight margins and exporters bear considerable financial risk with each shipment. Consequently, poor and unfair regulatory outcomes only heighten that financial risk which may be an inhibitor to trade.[17]

Financial implications

According to the Explanatory Memoranda to the Bills, they ‘will have no financial impact on the Australian Government budget’.[18]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[19]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comment in relation to the Bills in the legislative package on the basis that they ‘do not engage, or only marginally engage, human rights; promote human rights; and/or permissibly limit human rights’.[20]

General features of the Export Control Bill

Making rules

Whilst the Export Control Bill sets out the overarching legislative framework for the export of goods, it also gives the Secretary the power to make rules.[21] (Note that this power cannot be delegated.[22]) These rules contain the details which are absent from the Bill itself. The rules are legislative instruments in accordance with the Legislation Act 2003 and so are required to be tabled in both chambers of the Parliament and will be subject to disallowance.

In addition the rules may make provision for, or in relation to a matter by applying, adopting or incorporating, with or without modification, a range of specified official documents including but not limited to:

the Australian Fish Names Standard AS 5300-2019 or any later Australian Standard that sets out Australian fish names
the Australia New Zealand Food Standards Code and
the Codex Alimentarius issued by the body known as the Codex Alimentarius Commission of the Food and Agriculture Organization of the United Nations and the World Health Organization.[23]

The rule-making power is featured throughout the Export Control Bill. Draft Meat and Meat Product Rules, Draft Milk Rules, Draft Egg Rules and Draft Fish Rules have been circulated.[24]

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee noted that clause 432 provides that the Secretary may make rules prescribing matters ‘required or permitted by this Act to be prescribed by the rules’ or ‘necessary or convenient to be prescribed for carrying out or giving effect to this Act’.[25]

The Committee's view is that significant matters, such as the circumstances in which goods may or may not be exported, should generally be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In particular, the Scrutiny of Bills Committee was concerned with the use of ‘rules’ rather than ‘regulations’. This is because:

... regulations are subject to a higher level of executive scrutiny than other instruments as regulations must be approved by the Federal Executive Council and must also be drafted by the Office of Parliamentary Counsel (OPC). Therefore, if significant matters are to be provided for in delegated legislation (rather than primary legislation) the Committee considers they should at least be provided for in regulations, rather than other forms of delegated legislation which are subject to a lower level of executive scrutiny.[26]

The Committee sought advice from the Minister who provided the rationale for the use of the rules in the Export Control Bill:

In the context of complex and rapidly changing export markets, it is clear that the benefits of including detailed regulatory requirements in rules rather than regulations outweigh any concerns. It has also been common practise over a number of years for Acts to provide for the making of instruments rather than regulations. Under the Legislation Act 2003 all disallowable legislative instruments are subject to parliamentary scrutiny.[27]

Giving directions

The Export Control Bill also gives the Minister the power to make directions, by legislative instrument, about the performance of the Secretary’s functions or the exercise of the Secretary’s rule making powers.[28] However, the Minister is not empowered to give directions in relation to a specific application made under the Export Control Act. These directions are not subject to either the disallowance provisions or the sunsetting provisions of the Legislation Act.

Offences and penalties

The Export Control Bill contains a number of types or sanctions for non-compliance. These include criminal penalties, civil penalties, infringement notices, injunctions and enforceable undertakings. Specific offences and penalties are discussed in further detail throughout this digest.

Criminal offences

The Criminal Code Act 1995 contains the Criminal Code. Chapter 2 of the Criminal Code, entitled ‘General Principles of Criminal Responsibility’, contains a comprehensive statement of principles of criminal responsibility for Commonwealth offences. It provides that offences have physical elements, for example, doing or not doing an action,[29] and fault elements, such as intention, knowledge, recklessness or negligence.[30] Clause 370 of the Export Control Bill provides that for the purposes of the Bill, the physical elements of an offence are described as conduct rule provisions.

Where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element.[31] A person has intention with respect to conduct if he or she means to engage in that conduct.[32]

The standard of proof for a criminal offence is ‘beyond reasonable doubt’.[33]

Importantly, an executive officer of a body corporate may commit an offence or be liable to a civil penalty if the executive officer knew or was reckless or negligent about contraventions of certain provisions by the body corporate, was in a position to influence the conduct of the body corporate in relation to the contravention, and failed to take all reasonable steps to prevent the contravention.[34]

Civil penalty provisions

The Export Control Bill triggers the framework for civil penalties in Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). That Act provides for a framework of standard regulatory powers exercised by agencies across the Commonwealth. It reflects the Guide to Framing Commonwealth Offences, Infringements Notices and Enforcement Powers and applies to regulatory schemes which trigger its provisions through primary legislation—as the Export Control Bill does.[35] According to the Explanatory Memorandum:

Civil penalty provisions offer an alternative to criminal prosecution. The penalties have been set at a level substantially higher than the maximum fines available for criminal offences in the Bill. Given the regulatory nature of the Bill, it is important that civil penalties are set at a level that means that the penalty is not merely perceived as a cost of doing business. This is particularly the case for bodies corporate.[36]

The Export Control Bill operates so that an executive officer of a body corporate is liable to a civil penalty in specified circumstances.[37] Importantly, the body corporate must not indemnify a person against those liabilities.[38]

Chapter 2—exporting goods

Chapter 2 of the Export Control Bill relates to exporting goods which are defined as any of the following:

an animal or a plant
an article, substance or thing (including reproductive material) derived from an animal or a plant, whether or not in combination with any other article, substance or thing
food
any other article, substance or thing

but does not include narcotic goods within the meaning of the Customs Act 1901.[39]

Quick Guide to Chapter 2

The provisions in Chapter 2 of the Export Control Bill:

set out which goods are permanently prohibited from export
set out the Minister’s power to prohibit the export of certain goods on a temporary basis, either absolutely or to a particular place
provide that the rules may prescribe goods for export and/or conditions for the export of goods
impose criminal sanctions and civil penalties in certain circumstances and
set out the rules about government certificates.

Permanently prohibited goods

The Export Control Bill permanently prohibits the export of one good only—split vetch.[40] Split vetch seeds are a particular form of vetch seeds and are not the same as whole vetch seeds that have been broken (for example, in the course of harvesting or transport). The requirement to prohibit absolutely the export of split vetch seeds results from their toxic properties and possible use as a substitute for edible red lentils.[41]

Notably, there is no rule-making power attached to this clause. This means that any future decision to permanently prohibit the export of another good will require a formal legislative amendment.

Temporarily prohibited goods

The Bill provides that the Minister may determine, by legislative instrument:

the export of a specified type of good from an Australian territory is prohibited absolutely for up to six months or
the export of a specified type of good from an Australian territory to a specified place is prohibited for up to six months.[42]

For the purpose of the Bill the term Australian territory refers to Australia, the exclusive economic zone adjacent to Australia and the waters above the continental shelf adjacent to Australia; as well as to prescribed external territories or other areas prescribed by Rules made in accordance with subclause 8(2) of the Bill.[43] These are identified in the map below.[44]

https://www.ga.gov.au/__data/assets/image/0016/15136/GA17424.gif

Source: Geoscience Australia (GA), ‘Maritime boundary definitions’, GA website.

The Minister must make the temporary prohibition determination in writing and set out reasons.[45] Such a determination may only be made if he, or she, is satisfied that it is necessary to do so to protect human, animal or plant life or health; or to secure compliance with another Australian law.[46] The Minister may extend a temporary prohibition order for those same reasons for a further period of six months, and may do so more than once.[47]

Offences and penalties

The Export Control Bill creates a number of offences in relation to goods that are subject to permanent or temporary prohibition on export.

The Bill also provides for a civil penalty offence as an alternative to a criminal offence. Civil penalties are expressed as penalty units. The value of a penalty unit is currently $210.[48]

Nature of offence	Maximum criminal penalty	Maximum civil penalty
Exporting *goods* that are permanently prohibited or subject to absolute prohibition on export—basic contravention[49]	Imprisonment for 8 years or 480 penalty units, or both	960 penalty units
Exporting *goods* that are permanently prohibited or subject to absolute prohibition on export—with an intention to obtain a commercial advantage[50]	If the person is an individual—imprisonment for 10 years or 2,000 penalty units or both If the person is a body corporate—the amount worked out under section 50A.	If the person is an individual—4,000 penalty units If the person is a body corporate—the amount worked out under section 50A.
Exporting *goods* that are permanently prohibited or subject to absolute prohibition on export—where export causes economic consequences for Australia[51]	If the person is an individual—imprisonment for 10 years or 2,000 penalty units or both If the person is a body corporate—the amount worked out under section 50A.	If the person is an individual—4,000 penalty units If the person is a body corporate—the amount worked out under section 50A.
Conveying or possessing *goods* that are permanently prohibited or are subject to absolute prohibition on export—and are intended to be exported[52]	Imprisonment for 8 years or 480 penalty units or both	960 penalty units
Exporting goods to a temporarily prohibited place—basic contravention[53]	Imprisonment for 8 years or 480 penalty units or both	960 penalty units
Exporting goods to a temporarily prohibited place—with an intention to obtain a commercial advantage[54]	If the person is an individual—imprisonment for 10 years or 2,000 penalty units or both If the person is a body corporate—the amount worked out under section 50A.	If the person is an individual—4,000 penalty units If the person is a body corporate—the amount under section 50A.
Exporting goods to a temporarily prohibited place—where export causes economic consequences for Australia[55]	If the person is an individual—imprisonment for 10 years or 2,000 penalty units or both If the person is a body corporate—the amount worked out under section 50A.	If the person is an individual—4,000 penalty units If the person is a body corporate—the amount under section 50A.
Conveying or possessing goods that are temporarily prohibited and are intended to be exported to a particular place[56]	Imprisonment for 8 years or 480 penalty units or both	960 penalty units

References to section 50A in the Bill

Clause 50A of the Bill sets out the method for calculating penalties payable for certain contraventions by bodies corporate. The amount is not more than the greatest of the following:

20,000 penalty units
if the body has obtained, directly or indirectly, a benefit that is reasonably attributable to the conduct constituting the contravention, and the relevant court can determine the value of that benefit—three times the value of that benefit
if the relevant court cannot determine the value of a benefit (as above) or no such benefit has been obtained—10 per cent of the annual turnover of the body during the period of 12 months ending at the end of the month in which the body committed, or began committing, the contravention.

New concepts

The offences above introduce two new concepts:

intention to obtain a commercial advantage and
exports causing economic consequences.

Intention to obtain a commercial advantage

According to the Explanatory Memorandum to the Export Control Bill:

Commercial advantage may include monetary profit or private financial gain. There will be no requirement to prove that the person actually obtained a commercial advantage; proving that, at the time of exporting the goods the person intended to obtain a commercial advantage will be sufficient.[57]

Export causes economic consequences for Australia

For the purposes of the Bill the term economic consequences for Australia includes:

substantial damage to Australia’s trading reputation and
a restriction on, or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia.[58]

The Explanatory Memorandum states: ‘this is not intended to be an exhaustive definition, but will give examples of the kinds of circumstances that will be considered to be economic consequences for Australia for the purpose of the aggravated offences in the Bill.’[59]

Prescribed goods and conditions of export

Prescribed goods are those which have specific export conditions placed on them to ensure they are fit for export. Currently, prescribed goods include: dairy, live animals, animal reproductive material, fish, plants and plant products (grain, fresh fruit and vegetables), eggs, meat and meat products, animal food (frozen raw meat), organic produce, and pharmaceuticals (raw animal material).[60]

Non-prescribed goods are goods which generally do not have export controls placed on them because government to government certification for these goods is often not required by importing countries.

Currently, non-prescribed goods include: nutritional supplements, cosmetics, animal by-products, wool, skins and hides, inedible blood, rendered meats, prepared dry pet food and processed foods.[61]

Prescribing goods

The rules may prescribe kinds of goods (called prescribed goods) with reference to particular circumstances. This might be, for example, the place to which the goods are to be exported or the intended use of the goods.[62]

In determining whether to prescribe certain goods, the Secretary must take into account matters such as:

any importing country requirements relating to goods of that kind[63]
sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to goods of that kind
any Australian laws and standards relating to goods of that kind
Australia’s rights and obligations relating to goods of that kind under any international agreements to which Australia is a party
any international standards relating to goods of that kind and
any other matter the Secretary considers relevant.[64]

Prohibiting export of prescribed goods

The Bill authorises the making of rules to prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, subject to certain conditions which are also prescribed by the rules.[65] The rule-making powers in relation to the export of goods and prescribed goods are broad. They may cover matters including but not limited to:

conditions in relation to the export of prescribed goods, or the export of prescribed goods to a specified place[66]
requirements for the exporter to have permission to export the goods—for example to hold an export licence, government certificate or an export permit for the goods[67]
export operations to be carried out in relation to the goods—for example, the premises, equipment and facilities to be used to produce or prepare the goods, loading and transport of the goods, and identification, tracing, recall and transfer of the goods.[68]

Export operations means any of the following:

operations to export goods
operations to produce, or prepare, goods for export
operations in relation to goods for export before they are exported
operations in relation to goods that have been exported up until the delivery of the goods to their final overseas destination or, in the case of live animals intended to be slaughtered, up until and including the point of slaughter and
any other operations in relation to the export of goods.[69]

Produce, in relation to goods, includes the following:

pick or harvest (whether from the wild or otherwise) goods or goods from which goods are to be derived
capture or take (whether from the wild or otherwise) goods other than fish or goods (other than fish) from which goods are to be derived
propagate, rear, keep or breed (including as part of aquaculture operations) fish or fish from which goods are to be derived
breed, or carry out husbandry activities in relation to live animals or live animals from which goods are to be derived
grow plants or plants from which goods are to be derived.[70]

Prepare, in relation to goods, includes the following:

admission of animals for slaughter, being animals from which goods are to be derived
slaughter or kill animals from which goods are to be derived
dress carcases from which goods are to be derived
take (whether from the wild or otherwise) fish or fish from which goods are to be derived
process, pack and store goods
treat goods
handle and load goods.[71]

Offences and penalties

The Bill creates 20 separate offences in relation to prescribed goods. These are set out below.

Nature of offence	Maximum criminal penalty	Maximum civil penalty
Exporting *prescribed goods* without complying with prescribed conditions—basic contravention[72]	Imprisonment for 8 years or 480 penalty units or both	960 penalty units
Exporting *prescribed goods* without complying with prescribed conditions—intention to obtain commercial advantage[73]	If the person is an individual—imprisonment for 10 years or 2,000 penalty units or both If the person is a body corporate—the amount worked out under section 50A.	If the person is an individual—4,000 penalty units If the person is a body corporate—the amount under section 50A.
Exporting *prescribed goods* without complying with prescribed conditions—economic consequences for Australia[74]	If the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both If the person is a body corporate—the amount worked out under section 50A.	If the person is an individual—4,000 penalty units If the person is a body corporate—the amount under section 50A
Conveying or possessing *prescribed goods* that are intended to be exported in contravention of conditions[75]	Imprisonment for 8 years or 480 penalty units, or both	960 penalty units
Exporting *prescribed goods* to a particular place without complying with prescribed export conditions—basic contravention[76]	Imprisonment for 8 years or 480 penalty units, or both	960 penalty units
Exporting *prescribed goods* to a particular place without complying with prescribed export conditions—intention to obtain commercial advantage[77]	If the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both If the person is a body corporate—the amount worked out under section 50A.	If the person is an individual—4,000 penalty units If the person is a body corporate—the amount under section 50A
Exporting prescribed goods to a particular place without complying with prescribed export conditions—economic consequences for Australia[78]	If the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both If the person is a body corporate—the amount worked out under section 50A	If the person is an individual—4,000 penalty units If the person is a body corporate—the amount under section 50A
Conveying or possessing *prescribed goods* that are intended to be exported to a prescribed place in contravention of conditions[79]	Imprisonment for 8 years or 480 penalty units, or both	960 penalty units
Producing or preparing *prescribed goods* for export at certain premises in contravention of conditions—general[80]	Imprisonment for 8 years or 480 penalty units, or both	960 penalty units
Producing or preparing *prescribed goods* at certain premises in contravention of conditions—where the goods are to be exported to a particular place[81]	Imprisonment for 8 years or 480 penalty units, or both	960 penalty units
Making a false or misleading representation about *prescribed goods* that are entered for export—general[82]	Imprisonment for 8 years or 480 penalty units, or both	960 penalty units
Making a false or misleading representation about *prescribed goods* that are entered for export to a particular place[83]	Imprisonment for 8 years or 480 penalty units, or both	960 penalty units
Making a false or misleading representation about non-prescribed goods that are entered for export to a particular place[84]	Imprisonment for 5 years or 300 penalty units, or both	600 penalty units

Exemptions

Part 2 of Chapter 2 sets out exemptions from the operation of the Export Control Act 2019 in certain circumstances. The exemptions apply to prescribed goods—which in this Part are called relevant goods—that are to be exported:

as a commercial sample
for experimental purposes
in exceptional circumstances
in special commercial circumstances or
in other circumstances prescribed by the rules.[85]

None of those terms is defined in the text of the Export Control Bill. They will be defined in the rules.[86] However, an application for an exemption cannot be made for goods that are permanently prohibited or subject to a temporary prohibition determination.[87]

The Export Control Bill requires a person to make an application to the Secretary for an exemption in the approved manner and form. The application must, amongst other things, set out the basis on which the exemption is sought and be accompanied by any documents which are prescribed by the rules.[88] The Secretary must decide to either grant or refuse the application.[89] If the decision is to grant the exemption, the Secretary must give the applicant a certificate of exemption setting out:

the kind of goods covered by the exemption
each importing country covered by the exemption
the basis on which the exemption has been granted
the provisions of the Export Control Act covered by the exemption
the date when the exemption takes effect
the period during which the exemption remains in force
any conditions of the exemption and
any other information prescribed by the rules.[90]

Where an exemption has been granted subject to conditions, the Secretary is empowered, having regard to any matters prescribed in the rules, to vary the conditions, including by imposing new conditions.[91] In addition, the Secretary is empowered, having regard to any matters prescribed in the rules, to revoke an exemption.[92]

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee expressed concern about the Secretary’s broad administrative power to exempt persons (applicants) from the application of the law as it applies to particular classes of goods. The Scrutiny of Bills Committee considered ‘this power to be broadly akin to a Henry VIII clause, which enables delegated legislation to alter or override the operation of primary legislation’.[93]

The Committee sought advice from the Minister in relation to the matter.[94] In response, the Minister advised that the Secretary would only be able to grant exemptions from the provisions of the Export Control Bill in relation to a small class of goods and that such an exemption would be granted in response to an individual application, rather than in relation to all goods of a particular kind or all goods exported to a particular importing country.[95]

Despite the Minister’s assurance in relation to the limitations on the relevant power, the Scrutiny of Bills Committee remained ‘concerned about the breadth of the discretionary power to exempt persons proposing to export relevant goods from provisions of the Bill’.[96]

Government certificates

The rules may require, among other things that an exporter is required to hold a government certificate in relation to prescribed goods.[97]

According to the Department of Agriculture:

A government certificate is an official document issued by the department containing details about the product being exported, confirming the product meets importing country requirements ...

The role of the certificate is to confirm to the importing country authorities that the described goods have met specified requirements.[98]

Government certificates ‘are high-volume decisions and often made in relation to perishable items’.[99] Clause 62 of the Export Control Bill contains a broad power to make rules in relation to government certificates, including rules about the kinds of goods for which a government certificate may be issued and the kinds of goods for which a government certificate must not be issued.

About issuing bodies

The Export Control Bill provides that the issuing body for a government certificate in relation to a kind of goods that are to be, or that have been, exported is a person or body prescribed by the rules in relation to goods of that kind or if no person or body is prescribed by the rules in relation to goods of that kind—the Secretary.[100]

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee expressed its concern at the broad delegation of administrative powers to non-Commonwealth officers or bodies. The Committee noted that ‘there are no limits in the Bill as to the type of person or body who may be appointed as an issuing body for government certificates, meaning that such persons or bodies may include private contractors’.[101]

The rationale for the provision is contained in the Explanatory Memorandum:

Third party issuing bodies are necessary in circumstances where a body or person has the specialisation, knowledge and expertise to certify a kind of goods. For example, bodies that have specialised expertise in organics certification that the Secretary may not have will be authorised to issue certificates in relation to organic goods. The Bill operates so that the Secretary will be the issuing body for all kinds of goods, unless an issuing body is prescribed in the rules. In that case, the Secretary will not be an issuing body for that kind of goods unless the Secretary is also prescribed in the rules.[102]

Powers of the issuing body

The Bill sets out the manner in which an application for a government certificate is to be made to an issuing body.[103] The term issuing body is defined as a person or body that may issue a government certificate in relation to a kind of goods.[104]

The Secretary may do anything he, or she, thinks necessary in relation to an application for a government certificate. These include:

requesting the applicant (or another person who is considered to have information or documents) in writing to provide further specified information or documents relating to the application
arranging for another person with appropriate qualifications or expertise to take, test or analyse samples of goods, or from equipment or other things, that are relevant to the application or
any other thing prescribed by the rules.[105]

The issuing body for a government certificate (other than the Secretary) may charge a fee.[106]

Grant or refuse an application

On receiving an application in the appropriate manner and form,[107] the issuing body must decide to issue or refuse to issue the certificate.[108] The Bill sets out the reasons on which a decision to refuse a decision may be based. These include, but are not limited to, matters such as:

the issuing body is not satisfied, having regard to any matter that the issuing body considers relevant, that the requirements of the Export Control Act in relation to the export of the goods have been complied with, or will be complied with before the goods are imported into the importing country[109]
the issuing body reasonably believes that the applicant made a false, misleading or incomplete statement in the application for the certificate or gave false, misleading or incomplete information or documents to the issuing body[110]
information or documents requested by the issuing body were not given within a reasonable period after the request was made[111] or
the applicant refused to consent to a request by a person to enter premises of the applicant to conduct an audit of export operations carried out in relation to the goods.[112]

A government certificate may be issued electronically or in another form that is acceptable to the country to which the goods are exported.[113] The government certificate remains in force until the earlier of the expiry date on the certificate or the day the certificate is accepted or rejected by the importing country.[114]

Revoke a certificate

The issuing body or the Secretary may revoke a government certificate by notifying the holder of the certificate in writing if they have a reasonable belief in relation to the matters listed in subclause 75(1) of the Bill.[115] In that case, the holder of the certificate must return it to the issuing body, or the Secretary, within the period or in the circumstances set out in the rules. A failure to comply with this requirement gives rise to a maximum civil penalty of 60 penalty units.[116]

Setting generic requirements

An important feature of the 2016 consultation report was the acknowledgement:

Stakeholders want consistent regulation across commodities with generic requirements applied as much as possible across the board rather than on a commodity by commodity basis. This is particularly relevant for those who deal with multiple commodities and/or multiple markets.[117]

The Export Control Bill largely delivers on that request. To that end Chapters 4–6 of the Export Control Bill are drafted to ensure the provisions are mirrored where possible.

Quick Guide to Chapters 4–6

The provisions of Chapters 4–6 of the Bill relate to registered establishments, approved arrangements and export licences respectively. Each of the Chapters:

contains the relevant application requirements
requires that the fit and proper person test is satisfied
allows for the registration of establishments, approval of arrangements and grant of licences respectively to be renewed, varied, suspended or revoked by the Secretary
contains notice requirements to be fulfilled by the Secretary—including a notice to show cause as to why certain actions proposed by the Secretary should not occur and
creates offences in the event that certain obligations are not satisfied.

at a registered establishment—that is, an establishment registered by the Department [of Agriculture] to prepare goods for export.[118] Regardless of the size of the exporter, establishments must be registered before commencing preparation of prescribed goods for export (which includes production, storage, handling and/or presentation)[119]
at another kind of premises prescribed by the rules
in accordance with an approved arrangement—that is, an arrangement between the Department and a registered establishment that covers each stage of production and documents the establishment controls used to ensure that legislative and food safety requirements are met; importing country requirements are met and there is a sound basis for issuing an export permit or government certificate[120]
in accordance with an export licence[121] or
in any other way prescribed by the rules.[122]

Lodge an application

Chapter 4 of the Bill provides that the occupier of an establishment may apply to the Secretary to register the establishment for a kind of export operations in relation to a kind of prescribed goods.[123] In that case, the Secretary must decide to register, or to refuse to register, the establishment.[124]

Chapters 5 and 6 of the Bill contain equivalent provisions in respect of applications for the approval of an arrangement and the grant of an export licence.[125]

The Export Control Bill contains the following requirements which apply uniformly to applications :

an application must be made in the approved manner and form, include any information required by the form and be accompanied by any documents required by the form[126]
if an applicant becomes aware that information included in the application, or the information or documents given in relation to an application, was incomplete or incorrect the applicant must provide the Secretary with additional or corrected information[127]
the Secretary must make a decision in relation to an application within the consideration period—which will be set out in the rules[128]
the consideration period may be extended if the Secretary requires further information, documents or matters such as testing or inspection[129]
if the Secretary does not make a decision in relation to an application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period.[130]

Registering the establishment

The Secretary may register the establishment if he, or she, is satisfied of the following:

the occupier of the establishment is a fit and proper person
either all relevant Commonwealth liabilities of the occupier of the establishment have been paid or are taken to have been paid or where there are relevant Commonwealth liabilities unpaid the non-payment is due to exceptional circumstances
the construction of the establishment and its equipment and facilities are suitable for carrying out export operations of that kind in relation to goods of that kind
if the rules require export operations of that kind to be carried out in relation to goods of that kind in accordance with an approved arrangement—an approved arrangement is in force
if export operations, or other operations, are to be carried out in relation to different kinds of goods at the establishment—the operations are compatible with each other and will not have a detrimental effect on export operations to be carried out at the establishment
any other requirement prescribed by the rules.[131]

Chapters 5 and 6 of the Bill contain equivalent provisions in respect of applications for the approval of an arrangement and the grant of an export licence.[132]

Key issue—fit and proper person

The fit and proper person test is applied to applications made under Chapters 4, 5 and 6 of the Export Control Bill, and may apply to other provisions of the Act prescribed by the rules.[133] The matters to be considered in determining whether a person is fit and proper include but are not limited to the following:

whether the person, or an associate of the person, has been convicted of an offence against, or ordered to pay a pecuniary penalty under:
- the Export Control Act
- the Australian Meat and Live-stock Industry Act 1997
- the Biosecurity Act 2015 or the repealed Quarantine Act 1908
- the Imported Food Control Act 1992
- the Illegal Logging Prohibition Act 2012
- another Act prescribed by the rules
- the Criminal Code or the Crimes Act 1914—in specified circumstances[134]
whether the person, or an associate of the person has contravened any of the statutes listed above[135]
whether a debt is due and payable by the person, or an associate of the person, to the Commonwealth under any of the statutes listed above[136] and
whether the person made a false or misleading statement in an application under the Export Control Act or gave false or misleading information or documents to the Secretary or to another person performing functions or duties or exercising powers under the Export Control Act or a prescribed agriculture law.[137]

Key issue—Commonwealth liabilities

The Bill provides that certain activities are fee-bearing activities carried out by, on or behalf of, the Commonwealth in the performance of functions or exercise of its powers under the Export Control Act.[138]

The Bill defines a cost recovery charge as:

a fee prescribed by rules for a fee-bearing activity
a charge imposed by the Export Charges (Imposition—Customs) Act 2015, the Export Charges (Imposition—Excise) Act 2015, or the Export Charges (Imposition—General) Act 2015
a late payment fee relating to the fees and charges above.[139]

The Bill provides that the rules may prescribe:

when the cost-recovery charge is due and payable[140]
who is liable to pay the charge[141] and
whether a late payment fee is payable.[142]

A cost recovery charge may be recovered as a debt due to the Commonwealth by action in a court.[143]

Importantly, the requirement to pay a cost recovery charge is linked to the continuing registration of an establishment under Chapter 4, the approval of an arrangement under Chapter 5 and the grant of an export licence under Chapter 6 of the Bill.

Conditions of registration

The registration of an establishment is subject to conditions set out in the Export Control Act, prescribed by the rules and any additional conditions that the Secretary considers to be appropriate.[144]

Chapters 5 and 6 of the Bill contain equivalent provisions in respect of conditions which may be applied to the approval of an arrangement and the grant of an export licence.[145]

Period of registration

Registration of an establishment may be subject to an expiry date—otherwise the registration remains in force unless it is revoked.[146] Those registrations which have an expiry date require an application to renew the registration to be made within the period prescribed by the rules or a longer period that the Secretary allows.[147]

Chapters 5 and 6 of the Bill contain equivalent provisions in respect of the period of approval of an arrangement and the grant of an export licence.[148]

Key issue—review of decisions

The Export Control Bill provides that certain decisions may be reviewed internally and by the Administrative Appeals Tribunal. The reviewable decisions are set out in table form in clause 381.

The Bill provides that:

when a person makes a reviewable decision they must notify the relevant person of the decision in writing. The notice must state the terms of the decision, the reasons for the decision and include information about the right to have the decision reviewed[149]
an application for review must be in writing and be made within 30 days of the day the person was notified of the reviewable decision—or such longer period as the Secretary allows[150]
the Secretary must either review the decision personally or delegate that task to an internal reviewer. Either of those persons may affirm, vary or set aside the reviewable decision[151] and
once the decision has been reviewed, the Secretary or the internal reviewer must notify the person of the decision in writing and include information about the person’s right to have that decision reviewed by the Administrative Appeals Tribunal.[152]

Decisions to set an expiry date for the registration of an establishment and to register an establishment subject to conditions are reviewable decisions.[153] Chapters 5 and 6 of the Bill contain equivalent provisions in respect of decisions relating to the approval of an arrangement and the grant of an export licence.[154]

Consequences of registration

If the Secretary registers an establishment, the applicant must be given a certificate of registration which includes information which is set out in the Bill and a written notice stating the following:

any conditions prescribed by the rules that the Secretary has decided are not to be conditions of the registration
any additional conditions of the registration and
any other information prescribed by the rules.[155]

Chapters 5 and 6 of the Bill do not require the issuance of a certificate. However, Chapter 5 requires a written notice to be given, setting out relevant information in relation to the period of approval of an arrangement, and the conditions which do or do not apply.[156] Chapter 6 requires that the export licence which is issued contains relevant information about the terms of the licence.[157]

Renewal of registration

Where the registration of an establishment is subject to expiry, the occupier of the establishment may apply to the Secretary to renew the registration—in which case the application must be made within the period prescribed by the rules or within such longer period that the Secretary allows.[158]

On receiving an application for renewal of the registration of the establishment, the Secretary must decide to renew or to refuse to renew the registration.[159] An application for renewal made after the period set out in the rules or allowed by the Secretary, is taken to be an application to register an establishment and is subject to the same requirements as those for a new application.[160]

Chapters 5 and 6 of the Export Control Bill contain equivalent provisions so that the holder of an approval of an arrangement or the holder of an export licence must apply for a renewal within the time set by the rules.[161]

Grounds for refusal

As the Secretary may refuse to renew the registration of the establishment if the Secretary is not satisfied of the following:

the occupier of the establishment is a fit and proper person
either all relevant Commonwealth liabilities of the occupier of the establishment have been paid (or are taken to have been paid) or, where relevant Commonwealth liabilities of the occupier have not been paid—the non-payment is due to exceptional circumstances
the occupier of the establishment has complied with the requirements of the Export Control Act in relation to the export operations and prescribed goods covered by the registration
the conditions of the registration have been, and are being, complied with
the construction of the establishment and its equipment and facilities are suitable for carrying out export operations of that kind in relation to goods of that kind
if the rules require export operations of that kind to be carried in relation to goods of that kind in accordance with an approved arrangement—an arrangement is in force
any other requirement prescribed by the rules is met.[162]

Chapters 5 and 6 of the Bill contain near equivalent provisions which permit the Secretary to refuse to renew an approved arrangement or refuse to renew the grant of an export licence.[163]

Variation of registration

Chapters 4–6 of the Export Control Bill set out two methods by which the registration of an establishment, the approval of an arrangement and the grant of an export licence may be varied—that is, either on application by the occupier of the establishment, the holder of the approved arrangement or the holder of the export licence[164] or by the Secretary.

The Secretary has broad powers in relation to a variation including:

to vary any aspect of the registration, approved arrangement or licence, such as the kind of export operations or prescribed goods or the place to which goods may be exported
to vary the conditions or impose new conditions
to set an expiry date or set a different expiry date or
to revoke an existing expiry date.[165]

Occupier’s request to vary

The Bill sets out a range of circumstances about which the occupier of a registered establishment may apply to the Secretary to vary the relevant registration, including but not limited to:

in relation to matters such as the kinds of export operations or prescribed goods
the places to which goods may be exported
varying the conditions of registration or
approving an alteration of the establishment.[166]

In that case, the Secretary may make the variation or approve the alteration; or refuse to do so.[167]

Chapters 5 and 6 of the Bill contain near equivalent provisions so that the holder of an approved arrangement or the holder of an export licence may seek a variation from the Secretary. In that case the Secretary may refuse to vary the approved arrangement or refuse to vary the licence.[168]

Basis for Secretary’s decision to vary

The Secretary may make variations to the registration of an establishment on, amongst other things, the following grounds:

the integrity of a kind of prescribed goods covered by the registration cannot be ensured or to ensure compliance with the requirements of the Export Control Act or importing country requirements
a condition of the registration has been contravened or the condition of, or the equipment or facilities in, the establishment has changed or
there has been a change to the suitability of the establishment for the export operations covered by the registration.[169]

Chapters 5 and 6 of the Bill contain similar provisions so that the Secretary may vary an approved arrangement or an export licence.[170]

Notice requirements

Where the Secretary makes a decision to vary the registration of an establishment the Secretary must not take any action in relation to the variation without first giving a written notice to the occupier of the establishment. That notice must:

specify each proposed variation
specify the grounds for each proposed variation
request the occupier of the establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed variation should not be made and
include a statement setting out the occupier’s right to seek review of a decision to make the proposed variation.[171]

Chapters 5 and 6 of the Bill contain equivalent provisions requiring the Secretary to provide a notice to show cause as to why the variation of an approved arrangement or an export licence should not be made and to set out the relevant rights of review of the decision.[172]

Suspension of registration

The suspension of the registration of an establishment may occur in two ways—either on application by the occupier of the registered property[173] or by the Secretary.[174]

General grounds of suspension

The Bill provides for the suspension of registration of an establishment for equivalent conditions as those that apply to the variation of a registration. In addition to those reasons the Secretary may suspend a registration if, amongst other things:

the occupier of the establishment has failed to comply with a direction given to the occupier by an authorised officer (or the Secretary) or with a request made by an auditor
the occupier of the establishment has engaged in conduct that intimidated, hindered or prevented a person from performing functions or exercising powers under the Export Control Act
the occupier of the establishment or any other person who manages or controls export operations carried out at the establishment has made a false, misleading or incomplete statement in an application in relation to registration or
the occupier of the establishment or any other person who manages or controls export operations carried out at the establishment gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under the Export Control Act.[175]

Chapters 5 and 6 of the Bill contain equivalent provisions.[176]

Notice requirements

Before the Secretary takes action to suspend the registration of an establishment, written notice must be given to the occupier of the registered establishment. That notice must do all of the following:

specify each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the registration is proposed to be suspended
specify the grounds for the proposed suspension
request the occupier of the registered establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the registration should not be suspended as proposed and
include a statement setting out the occupier’s right to seek review of a decision to suspend the registration as proposed.[177]

The suspension of registration of the establishment must not commence before the earlier of, the day after any response to the show cause notice is received by the Secretary and the end of 14 days after that notice was given.[178]

Chapters 5 and 6 of the Bill contain equivalent provisions requiring the Secretary to provide a notice to show cause as to why the suspension of an approved arrangement or an export licence should not be made and to set out the relevant rights of review of the decision.[179]

Suspension because of overdue relevant Commonwealth liability

In addition to the general rules under which the Secretary may suspend the registration of an establishment, the Bill provides that the Secretary may suspend the registration of the establishment in relation to all kinds of export operations and all kinds of prescribed goods if:

a relevant Commonwealth liability of the occupier of the establishment, or relating to the establishment, is more than 30 days overdue
the Secretary has given a written notice to the person (the debtor) who is liable to pay the relevant Commonwealth liability and
within eight days after the notice is given, either the relevant Commonwealth liability has not been paid or the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.[180]

Chapters 5 and 6 of the Bill contain equivalent provisions empowering the Secretary to suspend an approved arrangement or an export licence in the event that there are overdue Commonwealth liabilities.[181]

Secretary’s power and suspension

A suspension of the registration of an establishment under the general rules or because of an outstanding Commonwealth liability must not be for more than 12 months.[182]

Importantly, the Bill empowers the Secretary to vary the period of a suspension[183] and/or to revoke a suspension of the registration of an establishment by written notice to the occupier of the establishment.[184]

Chapters 5 and 6 of the Bill contain equivalent provisions in relation to the period of suspension of an approved arrangement or an export licence.[185]

Offences

Chapters 4–6 of the Bill provide for offences to arise in the event that the conditions of registration of an establishment, the conditions for approval of an arrangement or the conditions for the grant of an export licence are contravened.

First an offence arises where the occupier of a registered establishment carries out a kind of export operations in relation to a kind of goods which is not covered by the registration of the establishment.[186] There is no equivalent offence under Chapters 5 and 6 in respect of an approved arrangement or an export licence.

The maximum penalty for the offence is imprisonment for two years or 120 penalty units, or both. In the alternative, the occupier of a registered establishment is liable for a maximum civil penalty of 240 penalty units.[187]

Second an offence arises where the registration of the property is not suspended. In that case, the occupier of the registered establishment commits an offence if he, or she, contravenes a condition of the registration.[188] Similarly, an offence arises:

where a person is the holder of an approved arrangement and a condition of the approved arrangement is contravened[189] and
where a person is the holder of an export licence and a condition of the licence is contravened.[190]

Third an offence arises where the registration of the property is suspended. The Bill provides that the occupier of a registered establishment commits an offence if a condition of the registration is contravened and the condition is required to be complied with during the period of the suspension.[191] Similarly an offence arises:

where a person is the holder of an approved arrangement and a condition of the approved arrangement which was required to be complied with during the suspension is contravened[192] and
where a person is the holder of an export licence and a condition of the export licence which was required to be complied with during the suspension is contravened.[193]

Revocation of registration

The Bill sets out the general rules which allow the Secretary to revoke the registration of an establishment.[194] These are in equivalent terms to the general rules which empower the Secretary to suspend registration of an establishment.

Chapters 5 and 6 of the Bill contain equivalent provisions in relation to the revocation of an approved arrangement or an export licence.[195]

Notice requirements—general rules

The Secretary must not revoke the registration of an establishment under the general rules unless he, or she, has given a written notice to the occupier of the establishment. The form of the notice is to be in near equivalent terms to a notice given in the case of a proposed suspension of registration—that is, it must amongst other things, request the occupier of the registered establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the registration should not be revoked.[196]

If the Secretary decides to revoke the registration of the establishment he, or she, must give the manager of the property a written notice stating that the registration of the establishment is to be revoked, the relevant reasons and the date the revocation is to take effect.[197]

The revocation must not take effect before the earlier of the day after any response to the show cause notice is received by the Secretary and the end of 14 days after the show cause notice was given.[198]

Chapters 5 and 6 of the Bill contain equivalent provisions in relation to the revocation of an approved arrangement or an export licence.[199]

Notice requirements—outstanding Commonwealth liability

The Secretary may revoke the registration of an establishment where registration has been suspended for non-payment of a relevant Commonwealth liability and within 90 days after the start of the suspension:

the relevant Commonwealth liability had not been paid and
the person (the debtor) who is liable to pay the relevant Commonwealth liability had not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.[200]

A revocation notice, in the same terms as for revocation under the general rules must be given.[201]

Chapters 5 and 6 of the Bill contain equivalent provisions in relation to the revocation of an approved arrangement or an export licence on this ground.[202]

Offence

It is an offence for an occupier of a registered establishment, who has been given notice of revocation, to continue to carry out export operations after the revocation takes effect. A maximum penalty of imprisonment for two years and/or 120 penalty units applies. Alternatively, the occupier may be liable for a maximum civil penalty of 240 penalty units.[203]

Register of registered establishments

The Secretary must keep a register of information about registered establishments. The register is to be kept at a place and in a form that the Secretary determines—including by electronic means.[204]

Accredited properties

Quick Guide to Chapter 3

Chapter 3 of the Export Control Bill sets out the manner in which a property becomes an accredited property from which export operations may be carried out.

It follows the same drafting pattern as Chapters 4–6 above for matters such as:

lodging an application
the Secretary’s power to vary, suspend or revoke accreditation and
the creation of certain offences.

However, the fit and proper person test does not apply.

The rules may prescribe conditions in relation to the export of prescribed goods, or the export of prescribed goods to a specified place, that require export operations to be carried out in relation to the goods at an accredited property.[205] ‘An accredited property will generally relate to the production of prescribed goods for export, and will usually be at the beginning of the supply chain, for example, where animals are raised or crops are grown.’[206]

Chapter 3 of the Export Control Bill contains many of the generic drafting elements which are common to Chapters 4–6.

the manager of a property may apply to the Secretary to accredit the property for a kind of export operations in relation to a kind of prescribed goods.[207] In that case the terms of clauses 377–379 (about applications) apply
the Secretary may accredit property for a kind of export operations in relation to a kind of prescribed goods and (where relevant), a specified place to which the goods may be exported provided that any Commonwealth liabilities have been paid or the non-payment is due to exceptional circumstances and[208] any other requirements prescribed by the rules are met.[209]

Accrediting the property

If the Secretary accredits the property he, or she, may set an expiry date for the accreditation.[210] Otherwise the accreditation remains in force unless it is revoked.[211] The accreditation of a property may be subject to conditions set out in the Export Control Act, conditions prescribed by the rules and any additional conditions that the Secretary considers appropriate.[212]

If the Secretary accredits a property, the Secretary must give the applicant a written notice stating the following information setting out the information specified in clause 81 of the Export Control Bill. The information includes matters such as:

each kind of export operations and each kind of prescribed goods covered by the accreditation
the date the accreditation takes effect
any conditions prescribed by the rules that the Secretary has decided are not to be conditions of the accreditation and
any additional conditions relating to the accreditation.

Renewal, variation and suspension of accreditation

As with Chapters 4–6, Chapter 3 of the Export Control Bill empowers the Secretary to:

renew the accreditation of the property—in which case the application must be made within the period prescribed by the rules or within such longer period that the Secretary allows[213]
refuse to renew the accreditation of the property for a kind of export operations in relation to a kind of prescribed goods and for a specified place to which the goods may be exported[214]
set a new expiry date for the accreditation of the property[215] and
impose conditions on the renewed accreditation.[216]

The variation of the accreditation of a property may occur in two ways—either on application by the manager of the property[217] or by the Secretary on the following grounds:

requirements prescribed by rules in relation to the accreditation of property are no longer being met
a condition of the accreditation has been, or is being, contravened
it is necessary to do so to take account of a notified event (under clause 108) or to correct a minor or technical error or
the accreditation needs to be varied for any other reason prescribed by the rules.[218]

The Export Control Bill provides for the suspension of accreditation of a property if the Secretary reasonably believes, amongst other things, any of the following:

the integrity of a kind of prescribed goods covered by the accreditation cannot be ensured
a requirement prescribed by rules is no longer met
a condition of the accreditation has been, or is being, contravened
the manager of the property failed to comply with a direction or request by an authorised officer (or the Secretary) or failed to comply with a request by an auditor
the manager of the property has engaged in conduct that hindered or prevented a person from performing functions or exercising powers under the Export Control Act or
the manager of the property or any other person who manages or controls export operations carried out at the property has made a false, misleading or incomplete statement in an application or given false, misleading or incomplete information or documents to a person (including the Secretary) who is performing functions or exercising powers under the Export Control Act.[219]

The Export Control Bill sets out the relevant notice requirements including, but not limited to, a request that the manager of the accredited property to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the accreditation should not be suspended as proposed.[220]

Consistent with the other generic provisions outlined in relation to Chapters 4–6 above, the Secretary may suspend the accreditation of a property if a relevant Commonwealth liability of the manager of the property, or relating to the property, is more than 30 days overdue.[221] A decision to suspend does not affect the person’s liability to pay the relevant Commonwealth liability.[222]

The Export Control Bill empowers the Secretary to vary the period of a suspension[223] and/or to revoke a suspension of the accreditation of a property under this Division by written notice to the manager of the property.[224]

Offences

The Bill creates offences where the conditions of accreditation are contravened.

First an offence arises where the accreditation of the property is not suspended. In that case, the manager of an accredited property commits an offence where:

the accreditation covers a kind of prescribed goods (called the relevant goods) that may be exported (either generally or to one or more places
the relevant goods are exported and
a condition of the accreditation relating to the relevant goods, or to export operations carried out in relation to the relevant goods, is contravened.[225]

Second an offence arises where the accreditation of the property is suspended. In that case, the manager of an accredited property commits an offence where the relevant goods are exported and:

a condition of the accreditation relating to the relevant goods or to export operations carried out in relation to the relevant goods, is contravened and
the condition is required to be complied with during the period of the suspension.[226]

In either case, the maximum penalty for the fault based offence is imprisonment for two years or 120 penalty units, or both. In the alternative, the person is liable to a maximum civil penalty of 240 penalty units.[227]

Revocation of accreditation

The Bill sets out the general rules which allow the Secretary to revoke the accreditation of a property.[228] These are in equivalent terms to the general rules which empower the Secretary to suspend accreditation.

The Secretary must not revoke the accreditation of a property under the general rules unless he, or she, has given a written notice to the manager of the property. The form of the notice is to be in near equivalent terms to a notice given in the case of a proposed suspension of accreditation—that is, it must amongst other things, request the manager of the accredited property to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the accreditation should not be revoked.[229]

If the Secretary decides to revoke the accreditation of a property he, or she, must give the manager of the property a written notice stating that the accreditation of the property is to be revoked, the relevant reasons and the date the revocation is to take effect.[230]

The revocation must not take effect before the earlier of the day after any response to the show cause notice is received by the Secretary and the end of 14 days after the show cause notice was given.[231]

In addition, the Secretary may revoke the accreditation of a property where accreditation has been suspended for non-payment of a relevant Commonwealth liability and within 90 days after the start of the suspension:

the relevant Commonwealth liability had not been paid and
the person (the debtor) who is liable to pay the relevant Commonwealth liability had not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.[232]

A revocation notice, in the same terms as for revocation on this ground under the general rules, must be given.[233]

Export permits

Quick Guide to Chapter 7

Chapter 7 of the Export Control Bill sets out the manner in which a person may be allowed to export a consignment of a prescribed product.

It follows the same drafting pattern as Chapters 4–6 above for matters such as:

lodging an application
the Secretary’s power to vary, suspend or revoke an export permit and
the creation of certain offences.

There is no fit and proper person test—instead, the emphasis is on the integrity of the goods to be exported. To that end, the Secretary may, amongst other things, require an assessment of the goods to be undertaken.

An export permit represents permission given by the Department of Agriculture to export a consignment of a prescribed product. Permission is given when legislative and importing country requirements are met.[234]

Chapter 7 of the Export Control Bill contains many of the generic drafting elements which are common to Chapters 4–6. It provides that a person may apply to the Secretary for an export permit for a kind of prescribed goods.[235] However, Chapter 7 gives the Secretary certain powers in relation to an application which are not extended to applications under Chapters 3–6. These include the power to:

request the applicant, in writing, to give the Secretary further specified information or documents
require an audit of export operations carried out in relation to the relevant goods (under Part 1 of Chapter 9)
require an assessment of the relevant goods to be carried out (under Part 2 of Chapter 9)
request the applicant to give a written statement which is signed and dated by the applicant, to the effect that the requirements of the Export Control Act have been complied with, or will be complied with; and any importing country requirements relating to the relevant goods have been met, or will be met in relation to the goods
take, test or analyse samples of the goods or from other things relevant to the application
arrange for another person with appropriate qualifications or expertise to take, test or analyse samples of the relevant goods or
any other thing prescribed by the rules.[236]

Issuing the permit

The Secretary must decide to issue the permit or to refuse to issue the permit.[237] In making the decision the Secretary must consider whether:

the requirements of the Export Control Act have been complied with, or will be complied with before the goods to which the application relates are imported into the importing country and
the importing country requirements relating to the goods to which the application relates have been met, or will be met before the goods are imported into the importing country.[238]

The export permit may be granted subject to conditions.[239] A permit must be issued in writing and specify the unique number that has been allocated to it.[240]

An export permit takes effect when it is issued and remains in force in accordance with the rules unless it is revoked.[241]

Variation, suspension or revocation of permit

The Secretary may vary an export permit, or the conditions of the permit, if the Secretary reasonably believes that circumstances prescribed by the rules exist or that it is necessary to correct a minor or technical error.[242] As with other variations under the Export Control Bill, the Secretary may vary the export permit on his, or her, own initiative or on the application of the holder of the permit.[243]

The varied export permit takes effect when it is issued and remains in force in accordance with the rules unless it is revoked.[244]

Similarly, the Secretary may suspend an export permit if the Secretary reasonably believes that circumstances prescribed by the rules exist.[245] In that case the Secretary must give a written notice to the holder of the permit to that effect.[246]

The Bill also allows the Secretary to revoke an export permit if he, or she, reasonably believes that, amongst other things:

the integrity of the goods cannot be ensured
a condition of the permit has been, or is being, contravened
an importing country requirement relating to the goods will not be, or is not likely to be, met before the goods are imported into the importing country or
the holder of the permit made a false, misleading or incomplete statement in the application for the permit; or gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under the Export Control Act.[247]

Other matters

Where an export permit is in force, the Secretary may require an assessment of the goods to be undertaken. Similar to the above, the basis for such a requirement includes that the Secretary reasonably believes that, amongst other things:

the integrity of the goods cannot be ensured
a condition of the permit has been, or is being, contravened
the requirements of the Export Control Act have not been complied with or
an importing country requirement relating to the goods will not be, or is not likely to be, met before the goods are imported into the importing country.[248]

Chapter 8—other matters relating to export

Quick Guide to Chapter 8

Chapter 8 of the Export Control Bill sets out:

the requirement to give the Secretary a notice of intention to export a consignment of prescribed goods
the need for a trade description to be applied to prescribed goods—and the offences that arise in the event that the trade description is false or misleading
the use of official marks on goods intended for export—and the offences that arise where an official mark is false, misleading or deceptive and
the basis for the establishment and administration of a system of tariff rate quotas for the export of goods.

Notices of intention to export

A notice of intention to export a consignment of prescribed goods must be given to the Secretary in the appropriate manner and form. It must include any information, and be accompanied by any documents, that have been prescribed by the rules.[249] A notice of intention to export is taken not to have been given if the notice does not comply with those requirements.[250]

Where a person who has been given a notice of intention to export a consignment of prescribed goods becomes aware that information included in the notice, or information or a document given to the Secretary in relation to the notice, was incomplete or incorrect, the person must, as soon as practicable, give the Secretary additional or corrected information.[251]

Trade descriptions

The term trade description for goods means a description or statement (whether in English or any other language), or a pictorial representation, indication or suggestion (direct or indirect), about any of the following:

the nature, number, quantity, quality, purity, class, grade, breed, measure, gauge, size, mass, colour, strength, sex, variety, genus, species or age of the goods
the country or place where the goods were made, produced or grown
the exporter, manufacturer or producer of the goods
the person by whom the goods were selected or in any way prepared
the method, time or place of manufacturing, producing, selecting or otherwise preparing the goods
the time before which, or period within which, the goods are to be used
the batch, lot or other grouping in which the goods are included
the material or ingredients of which the goods are composed or from which they are derived
the goods being the subject of an existing patent or privilege.[252]

A trade description for goods includes a mark that is commonly taken to be an indication of any of those matters.[253]

The rules may make provisions about trade descriptions for prescribed goods that are intended to be exported.[254] A person commits an offence if the person engages in conduct that contravenes such a rule. In that case the maximum criminal penalty is imprisonment for five years or 300 penalty units, or both. In the alternative the person is liable for a maximum civil penalty of 600 penalty units.[255]

In addition, a person commits an offence if the person alters or interferes with a trade description which is applied to prescribed goods after an export permit has been issued but before the goods have been exported. In that case the maximum criminal penalty is imprisonment for two years or 120 penalty units, or both. In the alternative, the person is person is liable to a maximum civil penalty of 240 penalty units.[256]

False trade descriptions

A trade description for goods is a false trade description for the goods if the description is false or likely to mislead in a material respect due to anything contained in or omitted from the description, or any alteration of or interference with the description.[257]

The Export Control Bill prohibits a person from knowingly applying a false trade description to prescribed goods that are intended to be exported. If a person contravenes the prohibition, the person commits an offence. The maximum criminal penalty is imprisonment for five years or 300 penalty units, or both. In the alternative, the person is liable to a maximum civil penalty of 600 penalty units.[258]

The Export Control Bill also prohibits a person from entering goods for export, putting goods on any aircraft or vessel for export, bringing goods to a landing place, port or other place for the purpose of being exported or exporting goods that are prescribed goods to which a false trade description has been applied. If a person contravenes the prohibition, the person commits an offence. The maximum criminal penalty is imprisonment for two years or 120 penalty units, or both. In the alternative, the person is liable to a maximum civil penalty of 240 penalty units.[259]

Official marks

Rules may provide that a specified mark is an official mark for the purposes of the Export Control Act. In that case, the rules may relate to the following:

the persons, or classes of persons, who may manufacture, possess, apply, alter or interfere with an official mark
the methods for applying official marks
the circumstances in which an official mark may, or must not, be applied
security of official marks
removal or defacement of official marks
making records in relation to official marks or
any other matter relating to official marks.[260]

In addition, the rules may provide for marks that resemble official marks[261] and for devices that are capable of being used to apply an official mark.[262]

The Export Control Bill also creates offences in relation to official marks including:

where a person contravenes a rule about official marks[263]
where a person applies a false, misleading or deceptive official mark to goods or to a document[264] or
where a person engages in conduct that results in an official mark that is applied to goods or to a document being altered so that it is false, misleading or deceptive.[265]

Tariff rate quotas

‘Tariff rate quotas between the Government and trading partners enable a specific quantity of exported product to enter the importing country at a reduced tariff rate.’[266] Under the Export Control Bill the rules may make provision for and in relation to the establishment and administration of a system of tariff rate quotas for the export of goods. The rules may set out matters such as:

determining the amount of tariff rate quota for the export of goods for a period
methods for determining tariff rate quota entitlements for the export of goods
establishing and maintaining a register of tariff rate quota entitlements
surrender, transfer, variation, and revocation of tariff rate quota entitlements
tariff rate quota certificates, including revocation of certificates
imposing conditions, including variation and revocation of conditions and
auditing and reporting requirements.[267]

Chapter 9—powers and officials

Quick Guide to Chapter 9

Chapter 9 of the Export Control Bill sets out certain powers of the Secretary and the roles and functions of various officials, in particular:

the powers of the Secretary to require an audit to be conducted and the power to approve a person or class of persons to be an auditor
the powers of an approved assessor or an authorised officer to carry out an assessment of goods
the Secretary’s powers to delegate certain functions and powers and
the powers of the Secretary to approve programs of export operations to be carried out by an accredited veterinarian or an authorised officer.

Audits

Audit of export operations

Under the Export Control Bill the Secretary may require an audit to be conducted of various aspects of export operations—whether the operations relate to prescribed goods or to non-prescribed goods.[268] Such an audit may deal with anything that is reasonable necessary for the effective conduct of the audit or incidental to the matter to which the audit relates.[269]

In that case, the audit may be conducted by an approved auditor or by an authorised officer.[270]

The Secretary must determine, in writing, the training and qualification requirements for persons to conduct audits[271] and may approve persons to conduct audits who satisfy those training and qualification requirements.[272] The rules may also provide that a person included in a specified class of persons is approved to conduct audits.[273]

Audit of persons

The Secretary may also require an audit to be conducted in relation to the performance of functions and the exercise of powers under the Export Control Act and compliance with the Act by a person such as a third party authorised officer,[274] an approved auditor, an approved assessor or an accredited veterinarian.[275] Such an audit may be conducted by a Commonwealth authorised officer or a person who has been prescribed by the rules for that purpose.[276]

The Secretary does not need to give notice of an audit. Rather, an auditor must give the relevant person for the audit a description of the scope of the audit before the audit is commenced.[277]

Powers of auditors

An auditor may do anything the auditor considers necessary for the purpose of conducting an audit, including:

request a person to answer questions, provide information in writing, or produce the documents
take samples of goods, or from equipment or other things used in export operations to which the audit relates
if the auditor is an authorised officer—take, test or analyse samples of goods, or from equipment or other things used in export operations or other operations, to which the audit relates or arrange for another person with appropriate qualifications or expertise to do so.[278]

Stakeholder comment

According to Citrus Australia:

... it is inappropriate for any auditor (government or commercial) to remove items or documents from any business. Much of this information is commercially sensitive. Citrus businesses gain an advantage over their competitors through a range of measures (e.g. pest and disease management, fertigation, irrigation, genetics, post-harvest practices). We have no confidence that the Department could appropriately manage the chain of custody for such items, and feel that the intellectual property and trade secrets of the businesses we represent would be compromised. Auditors travel between properties in motor vehicles. It is doubtful that these vehicles would achieve the Department’s own security requirements for identifying and protecting Commercial-in-Confidence information.[279]

Assessment of goods

An assessment of goods may be carried out by an authorised officer or an approved assessor.[280] The purpose of carrying out an assessment of goods is to verify one or more of the following:

that the requirements of the Export Control Act in relation to the export of the goods have been complied with, or will be complied with before the goods are imported into the importing country
that the importing country requirements relating to the goods have been met, or will be met before the goods are imported into the importing country
that a matter stated, or to be stated, in a government certificate in relation to the goods is true and correct.[281]

Powers to be exercised in carrying out an assessment

An assessor may do anything the assessor considers necessary in the conduct of the assessment, including the following:

request a person to answer questions, provide information in writing, or produce relevant documents and
take, test or analyse samples of the goods or arrange for another person with appropriate qualifications or expertise to do so.[282]

Approved assessors

Under the Export Control Bill the Secretary may, in writing, approve a person, or each person in a specified class of persons, to carry out assessments of goods.[283] However, a person must not be approved to carry out assessments of goods unless the Secretary is satisfied that the person satisfies the training and qualification requirements or will do so before the person carries out any assessments.[284]

The relevant training and qualification requirements for persons to carry out assessments of goods are to be determined, in writing, by the Secretary.[285]

As is the case for approved auditors, approved assessors may charge a fee in relation to things done in the performance of their functions or the exercise of their powers under the Export Control Act.[286]

Powers of the Secretary

Power to require information or documents

The Secretary may, by notice in writing given to a person, require the person, within the time stated in the notice, to give the Secretary any information, or produce any documents, specified in the notice that relates to:

any prescribed goods that have been, or are intended to be, exported
any permanently prohibited goods that have been exported, or any goods for which a temporary prohibition determination applied that have been exported or
any non‑prescribed goods in relation to which an application for a government certificate or a tariff rate quota certificate has been made or has been issued.[287]

A person who is required to provide information or produce documents but fails to do so commits an offence, the maximum penalty for which is imprisonment for two years or 120 penalty units or both.[288] In the alternative, the person is liable to a maximum civil penalty of 240 penalty units.[289]

Delegation and sub-delegation

The Secretary may, in writing, delegate any of his, or her, functions or powers under the Export Control Act to an SES employee, or an acting SES employee, in the Department. However, the Bill provides that certain functions or powers must not be delegated,[290] specifically:

to arrange for the use of computer programs for making certain decisions[291]
to apply for an adverse publicity order[292] and
to make rules.[293]

Where the Secretary delegates a function or power to an SES employee or an acting SES employee in the Department, that person may, in turn, sub-delegate some—but not all—of the functions or powers to:

an authorised officer
an APS employee in the Department or
if the function or power is to issue export permits—to a nominated export permit issuer.[294]

The powers that must not be sub-delegated are listed in table form in the Export Control Bill.[295]

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee noted that the Export Control Bill allows for the delegation (or sub-delegation) of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes.[296]

The Explanatory Memorandum to the Export Control Bill justifies such a power stating:

In an operational context, many of the powers that are delegated to SES staff may need to be completed by staff at a lower classification level as a matter of administrative necessity. This arises from the volume and timeliness of decision making and availability of SES officers who have broad responsibilities.[297]

The Scrutiny of Bills Committee sought further advice from the Minister who responded stating:

All APS employees in my Department with delegated powers are subject to the APS Code of Conduct as well as other key performance indicators. Third party authorised officers may be suspended or commit an offence for failing to comply with the conditions of their authorisation. I believe that these oversight mechanisms provide sufficient safeguards for the exercise of powers under the Bill, including those with subdelegations.

The person or persons to whom a power is subdelegated will depend on the specific power and which area of my Department is responsible for regulating that export industry for that aspect of the Bill. For example, the power to approve an approved arrangement may be subdelegated to directors (APS Executive Level 2) in the relevant program areas for industries that use approved arrangements (such as live animal export, meat and plants) ...[298]

Authorised officers

Authorisation of persons

The Secretary may, in writing, authorise a person, or each person in a class of persons, to be an authorised officer if the person, or each person in the class of persons, is an officer or employee of a Commonwealth body or is an officer or employee of a State or Territory body.[299]

The Secretary must only authorise an officer or employee of a State or Territory body to be an authorised officer if an arrangement is in force under clause 294 of the Export Control Bill.[300]

A person who is not an officer or employee of a Commonwealth body or a State or Territory body may apply to the Secretary to be a third party authorised officer.[301]

The Secretary must determine, in writing, training and qualification requirements for authorised officers and must not authorise a person to be an authorised officer unless the Secretary is satisfied that the person satisfies those requirements.[302]

Variation, suspension and revocation of authorisation

Consistent with the other provisions in the Export Control Bill the Secretary may:

vary the functions that the person has been authorised to perform, or the powers that the person has been authorised to exercise
vary any conditions to which the person’s authorisation is subject
vary the period or specify a period during which the authorisation has effect or
vary any other aspect of the person’s authorisation.[303]

In addition, the Secretary may, at any time, by notice in writing given to a person who is an authorised officer, suspend the person’s authorisation[304] or revoke the authorisation of a person by notice in writing given to the person.[305]

Functions and powers of authorised officers

An authorised officer may give a direction to a relevant person requiring the person to take specified action (such as to cease carrying out export operations in relation to particular prescribed goods or a kind of prescribed goods), within a specified period.[306]

The direction may be given orally or in writing (including by electronic means). However, where a direction is given orally, the person must, as soon as practicable after giving the direction, also give the direction in writing (including by electronic means).[307]

Accredited veterinarians and approved export programs

Accreditation of veterinarians

The rules may make provision for, and in relation to the accreditation of veterinarians for the purposes of carrying out export operations in approved export programs. The rules may include any of the following:

requirements that must be met for accreditation
applications for accreditation
the period of an accreditation
conditions of an accreditation
variation, suspension and revocation of an accreditation and
records and reporting by an accredited veterinarian.[308]

Approved export programs

The Secretary may, in writing, approve programs of export operations to be carried out by an accredited veterinarian or an authorised officer for the purpose of ensuring the health and welfare of eligible live animals or the health and condition of eligible animal reproductive material.[309]

The Export Control Bill sets out the types of export operations to be carried out in a program of export operations:

they may include matters such as, but not limited to, monitoring the health and welfare of eligible live animals or the health and condition of eligible animal reproductive material; examining, testing or treating eligible live animals or eligible animal reproductive material and keeping records of the implementation of the program
the operations may differ depending on matters such as the country to which the eligible live animals or eligible animal reproductive material is to be exported and the method by which the eligible live animals or eligible animal reproductive material is to be transported.[310]

Offences and penalties

The Bill creates a number of strict liability offences under Chapter 9.[311]

Nature of strict liability offence	Penalty
A veterinarian commits an offence if: the veterinarian carries out export operations in an *approved export program* and the veterinarian is reckless as to whether the export operations are in such a program and the veterinarian is not an *accredited veterinarian* or an *authorised officer* who has been directed to carry out the export operations.[312]	50 penalty units
An accredited veterinarian commits an offence of strict liability if: the accredited veterinarian is required by the rules to keep records, or provide reports, in connection with an approved export program and the accredited veterinarian contravenes the requirement.[313]	50 penalty units
An accredited veterinarian commits an offence of strict liability if: the veterinarian is given a direction in relation to an identified deficiency in the carrying out of export operations in an approved export program and the veterinarian fails to comply with the direction. [314]	50 penalty units
A person commits an offence of strict liability if: under the rules, the person is required to allow an accredited veterinarian or an authorised officer to accompany eligible live animals during their transport from Australia to their overseas destination in connection with an approved export program and the person contravenes the requirement.[315]	50 penalty units
If: an accredited veterinarian is engaged to carry out some or all of the export operations in an approved export program or the Secretary directs an authorised officer to carry out some or all of those export operations the person who wishes to export the eligible live animals or eligible animal reproductive material to which the program relates must provide the accredited veterinarian or authorised officer with all reasonable facilities and assistance necessary to carry out the export operations. A person commits an offence of strict liability if: the person is required to provide facilities and assistance as above; and the person fails to comply with the requirement.[316]	50 penalty units

Chapter 10—compliance and enforcement

Quick Guide to Chapter 10

The provisions of Chapter 10 of the Export Control Bill enliven Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). The Regulatory Powers Act provides for a framework of standard regulatory powers exercised by agencies across the Commonwealth. It was drafted to reflect the terms of the Guide to Framing Commonwealth Offences, Infringements Notices and Enforcement Powers and applies to regulatory schemes which trigger its provisions through primary legislation.

Chapter 10 contains monitoring, investigation and warrant powers.

It also canvasses other penalty options such as infringement penalties, enforceable undertakings and injunctions.

Modified meaning of authorised officer

For the purposes of Chapter 10 of the Export Control Bill, the term authorised officer means a Commonwealth authorised officer, or a State or Territory authorised officer, who satisfies the training and qualification requirements which have been determined by the Secretary in writing in relation to the performance of functions or duties and the exercise of powers under Chapter 10 or the Regulatory Powers Act.[317] This has the effect that a third party authorised officer is not able to exercise the powers set out in Chapter 10.

Monitoring powers

Basic monitoring powers

The Export Control Bill imports the monitoring powers in section 19 of the Regulatory Powers Act,[318] including the power to:

search the premises and any thing on the premises
examine or observe any activity conducted on the premises
inspect, examine, take measurements of or conduct tests on any thing on the premises
make any still or moving image or any recording of the premises or any thing on the premises
inspect any document on the premises
take extracts from, or make copies of, any such document
take onto the premises such equipment and materials as the authorised officer in order to exercise powers in relation to the premises
operate electronic equipment on the premises, to put relevant data in documentary form and remove those documents from the premises[319]
secure electronic equipment where an authorised person enters premises under a monitoring warrant[320] and
secure a thing for a period of 24 hours in circumstances where the thing is found during the exercise of monitoring powers on the premises and an authorised officer believes on reasonable grounds that it relates to the contravention of a related provision.[321]

Additional monitoring power

The Export Control Bill contains additional powers to:

take, test and analyse samples of any thing on premises entered under Part 2 of the Regulatory Powers Act
secure premises entered, and to secure things on premises entered, under Part 2 of the Regulatory Powers Act for the purpose of testing or analysing those things.[322]

Issuing a monitoring warrant

A monitoring warrant is issued if the issuing officer[323] is satisfied that it is reasonably necessary for one or more authorised officers to have access to premises for the purpose of determining whether a provision that is subject to monitoring has been, or is being, complied with or that information subject to monitoring is correct.[324] In that case the relevant warrant must do all of the following:

describe the premises to which the warrant relates
state that the warrant is issued under section 32 of the Regulatory Powers Act
state the purpose for which the warrant is issued
authorise one or more authorised officers (whether or not named in the warrant) from time to time while the warrant remains in force to enter the premises and to exercise the monitoring powers
state whether entry is authorised to be made at any time of the day or during specified hours of the day and
specify the day (not more than three months after the issue of the warrant) on which the warrant ceases to be in force.[325]

An authorised officer may enter premises and exercise the monitoring powers only if the occupier of the premises has consented to the entry, or the entry is made under a monitoring warrant.[326]

An authorised officer may use such force as is reasonable and necessary in the circumstances against things. However, this does not extend to the use of force against a person.[327]

Investigation powers

Nature of investigation powers

Clause 329 of the Export Control Bill sets out the provisions that are subject to the use of investigation powers under the Regulatory Powers Act. They are:

an offence against the Export Control Act
a civil penalty provision under the Export Control Act or
an offence against the Crimes Act 1914 or the Criminal Code as it relates to the Export Control Act.

Part 3 of the Regulatory Powers Act applies to the evidential material in respect of the above. Evidential material is material relevant to criminal offences and civil penalty provisions under the Export Control Act.[328] Subclause 329(2) of the Export Control Bill aligns the relevant provisions in both statutes in addition to providing that the Secretary for the purposes of the Export Control Act is equivalent to the relevant chief executive under the Regulatory Powers Act.

The investigation powers which are imported from section 49 of the Regulatory Powers Act therefore, include the power to:

where the occupier consents to entry—search the premises and any thing on the premises for the evidential material the authorised officer suspects on reasonable grounds may be on the premises
where the entry is under warrant—search the premises and any thing on the premises for the kind of evidential material specified in the warrant and to seize evidential material of that kind if the authorised officer finds it on the premises
inspect, examine, take measurements of, or conduct tests on, the evidential material
make any still or moving image or any recording of the premises or evidential material
take such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises
operate electronic equipment on the premises, to put relevant data in documentary form and remove those documents from the premises[329]
secure electronic equipment where an authorised person enters premises under a monitoring warrant[330] and
seize a thing that is not evidential material in circumstances where the evidential material is found in the execution of an investigation warrant which an authorised officer believes on reasonable grounds is evidence of the contravention of a related provision.[331]

Similar to the provisions about monitoring powers, the Export Control Bill provides for additional investigation powers being the power to take, test and analyse samples of any thing on the premises.[332] An authorised officer may use such force as is reasonable and necessary in the circumstances against things. However, this does not extend to the use of force against a person.[333]

Issuing an investigation warrant

Where an authorised officer suspects on reasonable grounds that there may be evidential material on any premises, he or she may enter the premises and use investigation powers so long as the occupier consents or the authorised officer has an investigation warrant.[334] The provisions in Part 3 of the Regulatory Powers Act set out the requirements for applying for an investigation warrant and its contents.[335]

Entry to adjacent premises

An authorised officer may apply to an issuing officer for an adjacent premises warrant authorising, on any one or more occasions, entry to premises and to remain on the premises for such period as is reasonably necessary.[336]

Where a warrant which is specified above relates to entry, the Export Control Bill requires an authorised officer, before actually entering the premises, to inform the occupier of the reasons for entering the premises and that the occupier may refuse consent.[337] Consent which is not voluntary is not valid. An occupier’s consent is valid until it is withdrawn.[338]

General rules—appropriate person

The Export Control Bill sets out the rights and responsibilities of appropriate persons (usually the occupier of the premises) in relation to monitoring and investigation warrants.[339] These are:

the appropriate person for premises is entitled to observe the execution of an entry warrant if the person is present at the premises while the warrant is being executed[340]
the right to observe ceases if the appropriate person impedes the execution of the relevant warrant[341]
an appropriate person is required to provide an authorised officer or a person assisting an authorised officer with all reasonable facilities and assistance for the effective exercise of their powers.[342]

Entering without a warrant or consent

Under the Export Control Bill an authorised officer must follow certain rules when entering relevant premises with neither a warrant nor consent. In that context, relevant premises are those that are, or form part of, a registered establishment or premises in or on, or that form part of, an accredited property.[343]

In that case, an authorised officer may enter relevant premises during business hours without a warrant for the purpose of exercising monitoring or investigation powers (as set out in Parts 2 and 3 of the Regulatory Powers Act)—as if the officer had a warrant.[344] An authorised officer may also enter relevant premises at any time if the officer has reasonable grounds for suspecting there might be on the premises a particular thing:

with respect to which an offence provision or civil penalty provision has been contravened or is reasonably suspected to have been contravened
that there are reasonable grounds for suspecting will afford evidence as to the contravention of such an offence or civil penalty provision or
that there are reasonable grounds for suspecting is intended to be used for the purpose of contravening such an offence or civil penalty provision.[345]

Despite the absence of a warrant or consent, an authorised officer must announce their entry and show their identity card to the appropriate person and explain their reasons for entering the premises.[346] Occupiers of premises which are entered without warrant, and their representatives, may observe the exercise of powers there, and must provide reasonable facilities and assistance.[347]

Powers in emergency situations

The Export Control Bill permits an authorised officer, in serious and urgent circumstances, and without consent or a warrant, to secure evidential material in or on certain premises or stop and search a conveyance.[348]

Infringement notices

Clause 359 of the Bill provides a list of each provision in the Export Control Act which is subject to an infringement notice under Part 5 of the Regulatory Powers Act.[349] The Secretary is both an infringement officer and the relevant chief executive for the purposes of that Part.[350]

Part 5 of the Regulatory Powers Act operates so that an infringement notice may be given if the Secretary believes on reasonable grounds that a person has contravened a provision subject to an infringement notice. An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.[351]

The contents of an infringement notice are set out in detail in section 104 of the Regulatory Powers Act including amongst other things:

the day and the name of the person to whom the notice is given
the name and contact details of the person who gave the notice and brief details of the alleged contravention
the amount that is payable under the notice and how payment may be made
the requirement to pay the amount specified within 28 days after the day the notice and the consequences of a failure to do so—including the possibility of prosecution for a contravention of a civil penalty provision.

The Export Control Bill modifies the effect of some provisions in Part 5 of the Regulatory Powers Act. In particular, the amount to be stated in an infringement notice must be the least of:

one-fifth of the maximum penalty that a court could impose on the person for that contravention
12 penalty units where the person is an individual, or 14 penalty units where the person is a body corporate and
if the rules specify a different number of penalty units for the alleged contravention of the provision by the person—that number of penalty units.[352]

Enforceable undertakings

Provisions of the Export Control Act are enforceable under Part 6 of the Regulatory Powers Act.[353] For the purposes of Part 6 the Secretary is an authorised person in relation to those provisions.[354]

The Regulatory Powers Act will operate so that the Secretary may accept undertakings that a person will take specified action or refrain from taking specified action. The person who gives the undertaking may withdraw or vary it at any time with the written consent of the Secretary. Similarly, the Secretary may, by written notice given to the person, cancel the undertaking.[355] In addition, the Secretary may apply to a relevant court for an order where he or she believes that an undertaking has been breached by the person who has given it.[356]

Injunctions

In addition, certain provisions of the Export Control Act are enforceable under Part 7 of the Regulatory Powers Act.[357] For the purposes of Part 7, the Secretary is an authorised person in relation to those provisions.[358]

The Regulatory Powers Act will operate so that the Secretary may apply to a relevant court for the grant of an injunction to restrain a person from engaging in specified conduct or requiring the person to do a thing.[359]

Chapter 11

Quick guide to Chapter 11 Chapter 11 of the Export Control Bill contains provisions about miscellaneous matters including but not limited to: confidentiality of information cost recovery record keeping taking, testing and analysing samples and matters relating to the export of livestock.

Cost recovery

Clauses 398–406 of the Export Control Bill relate to cost recovery. As stated above, the rules may prescribe fees that may be charged in relation to activities carried out by, or on behalf of the Commonwealth in the performance of function or the exercise of powers under the Export Control Act.[360]

Commonwealth cost recovery guidelines

The Australian Government’s overarching cost recovery policy is that, where appropriate, non-government recipients of specific government activities should be charged some or all of the costs of those activities. The cost recovery policy promotes consistent, transparent and accountable charging for government activities and supports the proper use of public resources.

In deciding what activities should be cost recovered, the government considers:

the nature of the government activity
who might be changed
the impact of cost recovery on competition, innovation or the financial viability of those who may need to pay charge and the cumulative effect of other government activities
whether it is efficient to cost recover the activity and
how the cost recovery might affect matters such as the policy outcomes for the activity; other government policies and legislation; and Australia’s obligations under international treaties.[361]

Charges Imposition Bills

The export of certain goods is managed under the current Export Control Act and the Australian Meat and Livestock Industry Act. These Acts and other supporting legislation provide the basis for ensuring that certain exports such as meat, seafood, dairy, plant products, non-prescribed goods and live animals meet the requirements of importing countries.[362]

The Department of Agriculture monitors operational policy and systems to ensure compliance with Australian export controls and any additional importing country requirements. This is achieved by undertaking inspection, audit and certification activities to ensure that the production, storage, handling and transportation of meat, seafood, dairy, plant products, non-prescribed goods and live animals intended for export comply with the conditions of the Australian export controls and any additional requirements imposed by an importing country.[363]

The Export Charges (Imposition—Excise) Act 2015, (the Imposition Excise Act) the Export Charges (Imposition—Customs) Act 2015 (the Imposition Customs Act) and the Export Charges (Imposition—General) Act 2015 (the Imposition General Act) were enacted as a legislative package that was designed as a cost recovery mechanism.[364] The Imposition Acts do not impose charges. They merely act as an appropriate legal structure for the recovery of costs through the imposition of charges, as a cost recovery levy,[365] rather than a cost recovery fee.[366]

The Export Charges (Imposition—Excise) Amendment Bill 2019, the Export Charges (Imposition—Customs) Amendment Bill 2019 and the Export Charges (Imposition—General) Amendment Bill 2019 amend the Imposition Excise Act, the Imposition Customs Act and the Imposition General Act respectively by:

repealing and substituting section 4 of each of the Imposition Acts to align the application of each of the Imposition Acts with the proposed Export Control Act 2019 by providing that the Imposition Acts extend to the same external Territories or other areas as the proposed Export Control Act[367]
amend subsection 7(1) of each of the Imposition Acts so that Regulations may prescribe a charge in relation to the export of a kind of goods covered by the proposed Export Control Act[368] and
amend section 11 of each of the Imposition Acts so that Regulations may prescribe a charge in relation to a matter relating to the export of a kind of goods under the proposed Export Control Act.[369]

Concluding comments

The report of the Senate Rural and Regional Affairs and Transport Committee opined that the Bills:

... strike the right balance of continuing to provide the level of regulatory oversight expected by Australia's trading partners, while making the requirements expected by those involved in the system easier to understand and administer through the reduction of complexity, duplication and ambiguity of existing legislation.[370]

[1]. Parliament of Australia, ‘Export Control Bill 2017 homepage’, Australian Parliament website. Note that the Export Control Bill 2017 was a stand-alone Bill—unlike the Export Control Bill 2019 which is one of a suite of five Bills.

[2]. F Chaney, (Minister for Social Security), ’Ministerial statement: meat substitution’, Senate, Hansard, 8 September 1981, p. 505.

[3]. AE Woodward (Commissioner) Report of the Royal Commission into Australian Meat Industry, Australian Government Publishing Service, Canberra, 1982, pp. 7–8.

[4]. P Nixon (Minister for Primary Industry), ‘Second reading speech: Export Control Bill 1982’, House of Representatives, Debates, 22 April 1982, p. 1767.

[5]. Department of Agriculture (DoA), Agricultural export regulation review, discussion paper, DoA, [Canberra], 2015.

[6]. Ibid., p. 1.

[7]. Department of Agriculture and Water Resources (DAWR), Agricultural export regulation review, consultation report, DAWR, Canberra, May 2016.

[8]. Ibid., p. 8.

[9]. Explanatory Memorandum, Export Control Bill 2019, p. 1.

[10]. DoA, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the Export Control Bill 2019 [Provisions] and related Bills, Senate, Canberra, 18 December 2019, p. 4.

[11]. The terms of reference, submissions to the RRAT Committee and the Committee’s final report (when published) are available on the inquiry homepage.

[12]. Senate Rural and Regional Affairs and Transport Legislation Committee, Export Control Bill 2019 [Provisions] and related Bills, Senate, Canberra, February 2020, p. vii.

[13]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2020, The Senate, 5 February 2020, p. 17.

[14]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, The Senate, 21 March 2018, pp. 122–189.

[15]. Australian Labor Party, Additional comments, Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry into the Export Control Bill 2019 [Provisions] and related Bills, The Senate, Canberra, February 2020.

[16]. Grain Trade Australia (GTA), Submission to the Department of Agriculture, Draft Export Control Bills Package 2019, 22 October 2019, p. 1.

[17]. Australian Livestock Exporters’ Council, Submission to the Department of Agriculture, Draft Export Control Bills Package 2019, 22 October 2019, p. 1.

[18]. Explanatory Memorandum, Export Control Bill 2019, p. 3; Explanatory Memorandum, Export Control (Consequential Amendments and Transitional Provisions) Bill 2019, p. 2.

[19]. The Statement of Compatibility with Human Rights can be found at pages 1–38 (commencing after page 457) of the Explanatory Memorandum to the Export Control Bill 2019; and at pages 1–12 (commencing after page 80) of the Explanatory Memorandum, Export Control (Consequential Amendments and Transitional Provisions) Bill 2019.

[20]. Parliamentary Joint Committee on Human Rights, Report, 1, 2020, 5 February 2020, pp. 94–95.

[21]. Export Control Bill, subclause 432(1).

[22]. Export Control Bill, paragraph 288(1)(b), table item 3.

[23]. Export Control Bill, subclause 432(3).

[24]. Department of Agriculture, Water and the Environment (DAWE), ‘Improving agricultural export legislation’, DAWE website, last updated 4 February 2020.

[25]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, The Senate, 21 March 2018, p. 183.

[26]. Ibid., p. 184.

[27]. Ibid., p. 185.

[28]. Export Control Bill, clause 289.

[29]. Criminal Code, section 4.1.

[30]. Criminal Code, section 5.1.

[31]. Criminal Code, section 5.6.

[32]. Criminal Code, subsection 5.2(1).

[33]. Criminal Code, section 13.2.

[34]. Export Control Bill, clause 364B.

[35]. Attorney-General’s Department (AGD), Guide to framing Commonwealth offences, infringement notices and enforcement powers, AGD, Canberra, September 2011.

[36]. Explanatory Memorandum, Export Control Bill 2019, p. 11.

[37]. Export Control Bill, clause 364C.

[38]. Export Control Bill, clause 364D.

[39]. Export Control Bill, clause 12.

[40]. Export Control Bill, clause 23.

[41]. Explanatory Memorandum, Export Control Bill 2019, p. 54.

[42]. Export Control Bill, subclause 24(1).

[43]. Export Control Bill, clauses 8, 12, 14.

[44]. Geoscience Australia (GA), ‘Maritime boundary definitions’, GA website.

[45]. Export Control Bill, subclause 24(3).

[46]. Export Control Bill, subclause 24(2).

[47]. Export Control Bill, clause 25. Note that although the Bill does not expressly state that a determination to vary a temporary prohibition order is a legislative instrument, the Minister has stated that it is and so is subject to Parliamentary scrutiny and disallowance under the Legislation Act. Source: Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, The Senate, 21 March 2018, pp. 122–123.

[48]. Crimes Act 1914, section 4AA.

[49]. Export Control Bill, clause 30.

[50]. Export Control Bill, clause 31.

[51]. Export Control Bill, clause 32.

[52]. Export Control Bill, clause 33. The person must either intend to export the goods or know the goods are intended to be exported.

[53]. Export Control Bill, clause 34.

[54]. Export Control Bill, clause 35.

[55]. Export Control Bill, clause 36.

[56]. Export Control Bill, clause 37. The person must either intend to export the goods or know the goods are intended to be exported.

[57]. Explanatory Memorandum, Export Control Bill 2019, p. 63.

[58]. Relevant definitions are set out in the Export Control Bill, clause 12.

[59]. Explanatory Memorandum, Export Control Bill 2019, p. 28.

[60]. DoA, Agricultural export regulation review, discussion paper, 2015, op. cit., p. 9.

[61]. Ibid., p. 10.

[62]. Export Control Bill, subclauses 28(1) and (2).

[63]. Export Control Bill, clause 12 defines the term importing country requirement, in relation to goods that are to be imported into a country from Australian territory or from a part of Australian territory, as meaning a requirement of that country that must be met before the goods may be imported into that country from Australian territory or from that part of Australian territory.

[64]. Export Control Bill, subclause 28(3).

[65]. Export Control Bill, subclause 29(1).

[66]. Export Control Bill, paragraph 29(2)(a).

[67]. Export Control Bill, paragraph 29(2)(b).

[68]. Export Control Bill, paragraph 29(2)(c).

[69]. Export Control Bill, clause 16. Note that clause 16 provides relevant examples.

[70]. Export Control Bill, clause 12.

[71]. Export Control Bill, clause 12.

[72]. Export Control Bill, clause 38.

[73]. Export Control Bill, clause 39.

[74]. Export Control Bill, clause 40.

[75]. Export Control Bill, clause 41. The person must either intend to export the goods or know the goods are intended to be exported.

[76]. Export Control Bill, clause 42.

[77]. Export Control Bill, clause 43.

[78]. Export Control Bill, clause 44.

[79]. Export Control Bill, clause 45. The person must either intend to export the goods or know the goods are intended to be exported.

[80]. Export Control Bill, clause 46. Importantly, Export Control Bill, subclause 46(4) creates a strict liability offence, the maximum penalty for which is 60 penalty units.

[81]. Export Control Bill, clause 47. Importantly, Export Control Bill, subclause 47(4) creates a strict liability offence, the maximum penalty for which is 60 penalty units.

[82]. Export Control Bill, clause 48.

[83]. Export Control Bill, clause 49.

[84]. Export Control Bill, clause 50.

[85]. Export Control Bill, subclause 52(1).

[86]. Export Control Bill, subclause 52(2).

[87]. Export Control Bill, subclause 53(2).

[88]. Export Control Bill, subclauses 53(1) and (3).

[89]. Export Control Bill, subclause 54(1).

[90]. Export Control Bill, subclause 56(1).

[91]. Export Control Bill, subclauses 58(2) and (3).

[92]. Export Control Bill, subclauses 59(1) and (2).

[93]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, The Senate, 21 March 2018, p. 124.

[94]. Ibid.

[95]. Ibid., p. 126.

[96]. Ibid., p. 127.

[97]. Export Control Bill, subparagraph 29(2)(b)(iii).

[98]. DoA, Export certification fact sheet, DoA website, last updated 4 November 2019.

[99]. Explanatory Memorandum, Export Control Bill 2019, p. 121.

[100]. Export Control Bill, subclause 63(1).

[101]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, op. cit., p. 129.

[102]. Excerpt from Explanatory Memorandum, Export Control Bill 2019, p. 117.

[103]. Export Control Bill, clause 65.

[104]. Export Control Bill, clause 12.

[105]. Export Control Bill, clause 68.

[106]. Export Control Bill, clause 64.

[107]. Export Control Bill, subclause 65(2).

[108]. Export Control Bill, subclause 67(1).

[109]. Export Control Bill, subparagraph 67(3)(a)(i).

[110]. Export Control Bill, subparagraphs 67(3)(b)(i) and (ii).

[111]. Export Control Bill, paragraph 67(3)(c).

[112]. Export Control Bill, subparagraph 67(3)(d)(i).

[113]. Export Control Bill, clause 71.

[114]. Export Control Bill, subclause 72(2).

[115]. Export Control Bill, clause 75.

[116]. Export Control Bill, clause 76.

[117]. DAWR, Agricultural export regulation review, consultation report, 2016, op. cit., p. 12.

[118]. DoA, Agricultural export regulation review, discussion paper, 2015, op. cit., p. 6.

[119]. Ibid., p. 11.

[120]. DAWR, Agricultural export regulation review, discussion paper, 2015, op. cit., p. 5.

[121]. Under the Export Control (Hardwood Wood Chips) Regulations 1996, which is enabled by the Export Control Act, exporters of unprocessed wood and woodchips are also required to obtain a licence to export wood (where it is two tonnes or more). Exemptions to this requirement apply to wood sourced from regions covered by a Regional Forest Agreement or wood sourced from a state or territory with a code of practice for plantation forestry approved by the Australian Government.

[122]. Export Control Bill, paragraph 29(2)(a). The Bill provides that the term establishment has the same meaning as premises. Premises is defined in clause 12 of the Bill as a (a) structure, building or conveyance; (b) a place (where or not enclosed or build on), including a place situated underground or under water; and (c) a part of a thing referred to in paragraph (a) or (b).

[123]. Export Control Bill, subclause 111(1).

[124]. Export Control Bill, clause 112(1).

[125]. Chapter 5, Export Control Bill, subclause 150(1) and clause 151; Chapter 6, Export Control Bill, subclause 190(1) and clause 191.

[126]. Export Control Bill, subclause 377(1).

[127]. Export Control Bill, clause 378.

[128]. Export Control Bill, subclauses 379(1), (3).

[129]. Export Control Bill, subclauses 379(5) and (9).

[130]. Export Control Bill, subclause 379(2).

[131]. Export Control Bill, subclause 112(2).

[132]. Chapter 5, Export Control Bill, subclause 151(2); Chapter 6, Export Control Bill, subclause 191(2).

[133]. Export Control Bill, subclause 372(1).

[134]. Export Control Bill, paragraph 372(2)(a).

[135]. Export Control Bill, paragraph 372(2)(d).

[136]. Export Control Bill, paragraph 372(2)(b).

[137]. Export Control Bill, paragraph 372(2)(c).

[138]. Export Control Bill, subclause 399(1). In addition, fees may be charged by non-Commonwealth bodies or persons under clauses 64 (issuing bodies), 275 (approved auditors), 283 (approved assessors) and 303 (State and Territory and third-party authorised officers).

[139]. Export Control Bill, clause 12.

[140]. Export Control Bill, paragraph 400(a).

[141]. Export Control Bill, clause 401.

[142]. Export Control Bill, subclause 403(1).

[143]. Export Control Bill, clause 404.

[144]. Export Control Bill, clause 113.

[145]. Chapter 5, Export Control Bill, clause 152; Chapter 6, Export Control Bill, subclause 192.

[146]. Export Control Bill, subclauses 112(3) and 115(1).

[147]. Export Control Bill, subclauses 116(1), (4).

[148]. Chapter 5, Export Control Bill, subclause 151(3) and subclause 154(1); Chapter 6, Export Control Bill, subclause 191(3) and subclause 194(1).

[149]. Export Control Bill, subclause 382(1).

[150]. Export Control Bill, subclause 383(2).

[151]. Export Control Bill, subclauses 383(3) and (4).

[152]. Export Control Bill, subclause 383(6) and clause 385.

[153]. Export Control Bill, subclause 381(1), table items 18 and 19.

[154]. For Chapter 5, Export Control Bill, subclause 381(1), table items 34 and 35; Chapter 6, Export Control Bill, subclause 381(1), table items 52 and 53.

[155]. Export Control Bill, clause 114.

[156]. Chapter 5, Export Control Bill, clause 153.

[157]. Chapter 6, Export Control Bill, clause 193.

[158]. Export Control Bill, clause 116.

[159]. Export Control Bill, subclause 117(1).

[160]. Export Control Bill, subclause 116(5).

[161]. Chapter 5, Export Control Bill, clause 155, subclause 156(1) and subclause 155(5); Chapter 6, Export Control Bill, clause 195, subclause 196(1) and subclause 195(5).

[162]. Export Control Bill, subclause 117(2).

[163]. Chapter 5, Export Control Bill, subclause 156(2); Chapter 6, Export Control Bill, subclause 196(2).

[164]. Chapter 4, Export Control Bill, clauses 120–122; Chapter 5, Export Control Bill, clauses 159–164 Chapter 6, Export Control Bill, clauses 199–200.

[165]. Chapter 4, Export Control Bill, subclause 123(1); Chapter 5, Export Control Bill, subclause 165(1); Chapter 6, Export Control Bill, subclause 201(1).

[166]. Export Control Bill, subclause 120(1).

[167]. Export Control Bill, subclause 120(2).

[168]. Chapter 5, Export Control Bill, clause 161; Chapter 6, Export Control Bill, clause 199.

[169]. Export Control Bill, subclause 123(2).

[170]. Chapter 5, Export Control Bill, subclause 165(2); Chapter 6, Export Control Bill, subclause 201(2).

[171]. Export Control Bill, subclauses 123(3), (4) and clause 124.

[172]. Chapter 5, Export Control Bill, subclauses 165(3), (4); Chapter 6, Export Control Bill, subclauses 201(3), (4).

[173]. Export Control Bill, clauses 125 and 126.

[174]. Export Control Bill, clause 127.

[175]. Export Control Bill, subclause 127(1).

[176]. Chapter 5, Export Control Bill, subclause 171(1); Chapter 6, Export Control Bill, subclause 205(1).

[177]. Export Control Bill, subclauses 127(2) and (3).

[178]. Export Control Bill, subclause 129(2).

[179]. Chapter 5, Export Control Bill, subclauses 171(2) and (3); Chapter 6, Export Control Bill, subclauses 205(2) and (3).

[180]. Export Control Bill, subclause 128(1).

[181]. Chapter 5, Export Control Bill, subclause 172(1); Chapter 6, Export Control Bill, subclause 206(1).

[182]. Export Control Bill, subclause 130(1).

[183]. Export Control Bill, subclause 130(2). However, any variation cannot bring the total suspension period to more than 12 months.

[184]. Export Control Bill, clause 131.

[185]. Chapter 5, Export Control Bill, clauses 174 and 175; Chapter 6, Export Control Bill, clauses 208 and 209.

[186]. Export Control Bill, subclauses 143(1) and (2).

[187]. Export Control Bill, subclause 143(3).

[188]. Export Control Bill, subclause 144(1).

[189]. Export Control Bill, subclause 184(1). The maximum penalty for the offence is imprisonment for eight years or 480 penalty units, or both. In the alternative, the person is liable for a maximum civil penalty of 960 penalty units. Export Control Bill, subclauses 184(3)–(4). The executive officer of a body corporate commits an offence if the body corporate commits this offence.

[190]. Export Control Bill, subclause 217(1). The maximum penalty for a person is imprisonment for 10 years or 2,000 penalty units. The maximum penalty for a body corporate is the amount under section 50A. In the alternative, a person is liable for a maximum civil penalty of 4,000 penalty units whilst the maximum civil penalty for a body corporate is the amount under section 50A. Export Control Bill, subclauses 217(2)–(4). The executive officer of a body corporate commits an offence if the body corporate commits this offence.

[191]. Export Control Bill, subclause 144(4). The maximum penalty is imprisonment for two years or 120 penalty units, or both. In the alternative civil penalties apply. The maximum civil penalty is 240 penalty units. Export Control Bill, subclauses 144(5)–(6).

[192]. Export Control Bill, subclause 184(5). The maximum penalty for a person is imprisonment for eight years or 480 penalty units. In the alternative, a person is liable for a maximum civil penalty of 960 penalty units. Export Control Bill, subclauses 184(6) and (8).

[193]. Export Control Bill, subclause 217(5). The maximum penalty for a person is imprisonment for 10 years or 2,000 penalty units. The maximum penalty for a body corporate is the amount under section 50A. In the alternative, a person is liable for a maximum civil penalty of 4,000 penalty units whilst the maximum civil penalty for a body corporate is the amount under section 50A. Export Control Bill, subclauses 217(6)–(8).

[194]. Export Control Bill, subclause 138(1).

[195]. Chapter 5, Export Control Bill, subclause 179(1); Chapter 6, Export Control Bill, subclause 212(1).

[196]. Export Control Bill, subclauses 138(2) and (3).

[197]. Export Control Bill, subclause 140(1).

[198]. Export Control Bill, subclauses 140(2).

[199]. Chapter 5, Export Control Bill, subclauses 179(2) and (3) and clause 181; Chapter 6, Export Control Bill, subclauses 212(2) and (3) and clause 214).

[200]. Export Control Bill, subclause 139(1).

[201]. Export Control Bill, subclause 140(1).

[202]. Chapter 5, Export Control Bill, clause 180, subclause 181(1); Chapter 6, Export Control Bill, clause 213, subclause 214(1).

[203]. Export Control Bill, clause 141. Also see equivalent provisions under Chapter 5, Export Control Bill, clause 182; Chapter 6, Export Control Bill, clause 215.

[204]. Export Control Bill, clause 148.

[205]. Export Control Bill, subparagraph 29(2)(a)(i).

[206]. Explanatory Memorandum, Export Control Bill 2019, p. 20.

[207]. Export Control Bill, clause 78.

[208]. Export Control Bill, paragraph 79(2)(a). Note that clause 431 provides that a relevant Commonwealth liability of a person is taken to have been paid for a specified provision of the Act in circumstances prescribed by the rules.

[209]. Export Control Bill, paragraph 79(2)(b).

[210]. Export Control Bill, subclause 79(4).

[211]. Export Control Bill, subclause 82(1).

[212]. Export Control Bill, subclause 80(1).

[213]. Export Control Bill, clause 83.

[214]. Export Control Bill, subclause 84(2). A decision to refuse to renew accreditation is to be based on matters which are equivalent to those considered in relation to an initial application for accreditation, as well as whether the manager of the property has complied with the requirements of the Export Control Act and whether any other requirement prescribed by the rules is being, or has been, met.

[215]. Export Control Bill, subclauses 84(3), (4).

[216]. Export Control Bill, clause 85.

[217]. Export Control Bill, clause 87.

[218]. Export Control Bill, subclause 90(2). Clause 91 provides that notice of variation and its terms must be given to the manager of the property in writing.

[219]. Export Control Bill, subclause 94(1).

[220]. Export Control Bill, subclauses 94(2) and (3).

[221]. Export Control Bill, subclause 95(1).

[222]. Export Control Bill, subclause 95(4).

[223]. Export Control Bill, subclause 97(2).

[224]. Export Control Bill, clause 98.

[225]. Export Control Bill, subclause 106(1).

[226]. Export Control Bill, subclause 106(4).

[227]. Export Control Bill, subclauses 106(2), (3), (5) and (6).

[228]. Export Control Bill, subclause 102(1).

[229]. Export Control Bill, subclauses 102(2) and (3).

[230]. Export Control Bill, subclause 104(1).

[231]. Export Control Bill, subclauses 104(2).

[232]. Export Control Bill, subclause 103(1).

[233]. Export Control Bill, subclause 104(1).

[234]. DoA, Agricultural export regulation review, discussion paper, 2015, op. cit., p. 5.

[235]. Export Control Bill, clause 224.

[236]. Export Control Bill, clause 241.

[237]. Export Control Bill, subclause 225(1).

[238]. Export Control Bill, subclause 225(2).

[239]. Export Control Bill, clause 227.

[240]. Export Control Bill, clause 226.

[241]. Export Control Bill, clause 228.

[242]. Export Control Bill, subclause 229(1).

[243]. Export Control Bill, subclause 229(3).

[244]. Export Control Bill, clause 230.

[245]. Export Control Bill, subclause 231(1).

[246]. Export Control Bill, subclause 231(2).

[247]. Export Control Bill, subclause 233(1).

[248]. Export Control Bill, clause 234.

[249]. Export Control Bill, subclause 243(1).

[250]. Export Control Bill, subclause 243(3).

[251]. Export Control Bill, subclauses 244(2) and (3).

[252]. Export Control Bill, subclause 246(1).

[253]. Export Control Bill, clause 12 defines a mark as including a stamp, seal and label.

[254]. Export Control Bill, subclause 248(1).

[255]. Export Control Bill, clause 249.

[256]. Export Control Bill, clause 250.

[257]. Export Control Bill, clause 251.

[258]. Export Control Bill, clause 252.

[259]. Export Control Bill, clause 253.

[260]. Export Control Bill, clause 255.

[261]. Export Control Bill, clause 256.

[262]. Export Control Bill, clause 257.

[263]. Export Control Bill, clause 258.

[264]. Export Control Bill, clauses 259 and 260.

[265]. Export Control Bill, clauses 261 and 262.

[266]. Explanatory Memorandum, Export Control Bill 2019, p. 46.

[267]. Export Control Bill, subclauses 264(1) and (2).

[268]. Export Control Bill, subclauses 266(1).

[269]. Export Control Bill, subclauses 266(3).

[270]. Export Control Bill, subclauses 266(5).

[271]. Export Control Bill, subclause 273(4).

[272]. Export Control Bill, subclause 273(3).

[273]. Export Control Bill, clause 274.

[274]. A third party authorised officer is appointed by the Secretary under clause 291 of the Export Control Bill.

[275]. Export Control Bill, subclause 267(1).

[276]. Export Control Bill, subclause 267(2).

[277]. Export Control Bill, subclauses 270(1) and (2). Clause 269 of the Export Control Bill specifies who is the relevant person in respect of each of the different audits which may be conducted.

[278]. Export Control Bill, subclause 272(1).

[279]. Citrus Australia, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the Export Control Bill 2019 [Provisions] and related Bills, Senate, Canberra, 6 January 2020, p. 7.

[280]. Export Control Bill, subclause 277(5).

[281]. Export Control Bill, subclause 277(3).

[282]. Export Control Bill, subclause 280(1).

[283]. Export Control Bill, subclause 281(1).

[284]. Export Control Bill, subclause 281(3).

[285]. Export Control Bill, subclause 281(4).

[286]. Export Control Bill, clauses 275 (for approved auditors) 283 (for approved assessors).

[287]. Export Control Bill, subclause 285(1).

[288]. Export Control Bill, subclauses 285(4) and (5).

[289]. Export Control Bill, subclause 285(6).

[290]. Export Control Bill, subclause 288(1).

[291]. Under Export Control Bill, subclause 286(1).

[292]. Under Export Control Bill, subclause 364F(1).

[293]. Under Export Control Bill, clause 432.

[294]. Export Control Bill, subclause 288(2).

[295]. Export Control Bill, subclause 288(3).

[296]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, op. cit., p. 137.

[297]. Explanatory Memorandum, Export Control Bill 2019, p. 330.

[298]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, op. cit., p. 139.

[299]. Export Control Bill, subclause 291(1).

[300]. Export Control Bill, subclause 291(2).

[301]. Export Control Bill, subclause 291(3).

[302]. Export Control Bill, subclauses 291(8) and (9).

[303]. Export Control Bill, clause 295.

[304]. Export Control Bill, subclause 296(1).

[305]. Export Control Bill, subclause 297(1).

[306]. Export Control Bill, subclause 305(1).

[307]. Export Control Bill, subclauses 309(1) and (2).

[308]. Export Control Bill, clause 312.

[309]. Export Control Bill, subclause 311(1).

[310]. Export Control Bill, subclause 311(2).

[311]. The imposition of strict liability means that a fault element does not need to be satisfied, but the offence will not criminalise honest errors and a person cannot be held liable if he, or she, had an honest and reasonable belief that they were complying with relevant obligations.

[312]. Export Control Bill, clause 315.

[313]. Export Control Bill, clause 316.

[314]. Export Control Bill, clause 317.

[315]. Export Control Bill, clause 319.

[316]. Export Control Bill, clause 321.

[317]. Export Control Bill, clause 324.

[318]. Export Control Bill, clause 326.

[319]. Regulatory Powers Act, subsections 20(1) and (4).

[320]. Regulatory Powers Act, subsection 21(2).

[321]. Regulatory Powers Act, subsection 22(1).

[322]. Export Control Bill, subclause 327(2).

[323]. Export Control Bill, clause 12 defines an issuing officer as a magistrate; a Judge of a court of a State or Territory; or a Judge of the Federal Court or the Federal Circuit Court.

[324]. Regulatory Powers Act, section 32.

[325]. Regulatory Powers Act, subsection 32(4).

[326]. Regulatory Powers Act, section 18.

[327]. Export Control Bill, subclause 327(6).

[328]. Export Control Bill, clause 12 cross-references the meaning of the term evidential material with the meaning in section 39 of the Regulatory Powers Act.

[329]. Regulatory Powers Act, subsections 50(1) and (4).

[330]. Regulatory Powers Act, subsection 51(2).

[331]. Regulatory Powers Act, section 52.

[332]. Export Control Bill, subclause 330(2).

[333]. Export Control Bill, subclause 330(6).

[334]. Regulatory Powers Act, section 48.

[335]. Regulatory Powers Act, section 70.

[336]. Export Control Bill, clause 335. Note that clause 334 requires an authorised officer who enters premises under such a warrant to take all reasonable steps to ensure that they cause as little inconvenience to the occupier of the premises as is practicable.

[337]. Export Control Bill, subclause 336(1).

[338]. Export Control Bill, subclauses 336(2)–(4).

[339]. Export Control Bill, clause 12 defines an appropriate person for premises to which an adjacent premises warrant relates, premises entered under section 346 or 347 as the occupier of the premises or another person who apparently represents the occupier.

[340]. Export Control Bill, subclause 341(1).

[341]. Export Control Bill, subclause 341(2).

[342]. Export Control Bill, subclause 342(1). It is an offence to fail to comply with this requirement, with a maximum penalty of 30 penalty units: subclause 342(2).

[343]. Export Control Bill, clause 345.

[344]. Export Control Bill, clause 346.

[345]. Export Control Bill, clause 347.

[346]. Export Control Bill, clause 348.

[347]. Export Control Bill, clauses 350, 351.

[348]. Export Control Bill, clause 353.

[349]. Subsection 99(2) and section 100 of the Regulatory Powers Act operate to apply Part 5 of that Act to the Export Control Act.

[350]. Export Control Bill, subclause 359(2).

[351]. Regulatory Powers Act, subsection 103(2).

[352]. Export Control Bill, subclause 360(2).

[353]. Section 111 of the Regulatory Powers Act operates to apply Part 6 of that Act to the Export Control Act.

[354]. Export Control Bill, subclause 362(2).

[355]. Regulatory Powers Act, subsection 114.

[356]. Regulatory Powers Act, subsection 115.

[357]. Section 118 of the Regulatory Powers Act operates to apply Part 7 of that Act to the Export Control Act.

[358]. Export Control Bill, subclause 364(2).

[359]. Regulatory Powers Act, subsection 121.

[360]. Export Control Bill, subclause 399(1).

[361]. Department of Finance (DoF), Australian Government cost recovery guidelines, DoF website, paragraphs 10 and 11.

[362]. Explanatory Memorandum, Export Charges (Imposition—Customs) Bill 2015 [and] Export Charges (Imposition—Excise) Bill 2015 [and] Export Charges (Imposition—General) Bill 2015, p. 1.

[363]. Ibid.

[364]. For information about the operation of the Export Charges Acts see: R Dosser, Export Charges (Collection) Bill 2015 [and associated Bills], Bills digest, 132, 2014–15, Parliamentary Library, Canberra, 2015.

[365]. Department of Finance (DoF), Australian Government cost recovery guidelines, op. cit., states that cost recovery levies are charges imposed when a good, service or regulation is provided to a group of individuals or organisations (e.g. an industry sector) rather than to a specific individual or organisation. A cost recovery levy is a tax and is imposed via a separate taxation Act.

[366]. Ibid. A cost recovery fee is a charged when a good, service or regulation (in certain circumstances) is provided directly to a specific individual or organisation.

[367]. Export Charges (Imposition—Customs) Bill, item 1; Export Charges (Imposition—Excise) Bill, item 1 and Export Charges (Imposition—General) Bill, item 1.

[368]. Export Charges (Imposition—Customs) Bill, item 4; Export Charges (Imposition—Excise) Bill, item 4 and Export Charges (Imposition—General) Bill, item 4.

[369]. Export Charges (Imposition—Customs) Bill, items 9 and 10; Export Charges (Imposition—Excise) Bill, items 9 and 10 and Export Charges (Imposition—General) Bill, items 9 and 10.

[370]. Senate Rural and Regional Affairs and Transport Legislation Committee, Export Control Bill 2019 [Provisions] and related Bills, Senate, Canberra, February 2020, p. 15.

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