Export Control Bill 2017

​​​​​​​​​​​​​​​​​​​​​​​​​The Exposure Draft Export Control Bill 2017 (the Bill) and a Regulation Impact Statement were released for public comment on 25 August 2017. Submissions closed 24 October 2017.

We received 25 submissions from businesses, industry groups and state and territory governments. Most submissions have been published. A small number were marked confidential in part, or in their entirety. 

Read the Bill and the explanatory memorandum (including the Regulation Impact Statement).

​​​​​​​​​​​Background

It is in Australia’s interest to ensure that appropriate regulation is in place. The administration of this legislative framework should also be the least burdensome for government, businesses, community organisations and individuals involved in the agricultural export system. Australia’s export legislation must support our agricultural industry but also provide assurance to our trading partners and deter the few that would seek to undermine our reputation as a reliable supplier of quality products.

The current framework continues to serve Australia well by enabling the export of agricultural products which meet importing country requirements. However, many of the legislative instruments that give effect to the existing framework are due to sunset (cease to be law) on 1 April 2020 in accordance with the Legislation Act 2003 and must be reviewed before being either remade or repealed. This provides an opportunity to improve our legislation.

A review of the current framework was undertaken in 2015 to ensure farmers and exporters are supported by contemporary and efficient legislation and our trading partners continue to have confidence in Australia’s agricultural exports. The review found that, while the existing legislative framework serves Australian exporters well, there is scope for improvements to better support farmers and exporters to meet future importing country requirements and seize trade opportunities in a changing global environment. This included being more flexible to allow government and industry to respond to changes in technologies and future importing country requirements.

The review also found that if the framework is maintained in its current complex and duplicative state, it may lead to inefficient export procedures, increase transaction costs, and delay the clearance of agricultural goods for export in the longer term. All these potential effects may have an adverse impact on Australia’s export trade with other countries.

As a result of the review and stakeholder feedback, the Australian Government decided to improve the legislative framework to better support exporters and facilitate trade now and into the future.

No significant changes to export policy or the current baseline of regulation will be made as a result of the improvements to the legislative framework. It is intended to provide a more consistent and clear framework that is responsive to emerging issues.

Export Control Bill 2017

The new legislation will create a legislative framework that will provide the primary means for the Australian Government to regulate goods exported from Australian territory. This framework will support access to international trading markets for Australian goods and protect Australia’s global trading reputation as a reliable source of safe and high-quality goods.

The new legislation will give authority to the Australian Government to continue to certify that goods for export meet importing country requirements. It will be more flexible than the current framework, enabling the Australian Government to be more responsive and better manage changes and issues as they arise.

The new legislation will provide the foundation for a strong legislative framework that enables the management of agricultural exports in a modern and clear manner and enhances Australia’s capacity to gain, maintain and grow global market access for our exports into the future. It can be considered a ‘tool box’ of regulatory provisions available to Government to regulate agricultural exports.

The new legislation is designed to draw upon, support and give effect to Australia’s rights and obligations under relevant international agreements, including trade-related agreements. In order to give effect to Australia’s rights and obligations under relevant international trade related agreements, the rules will be able to provide for a system of tariff rate quotas to be administered for the export of certain goods.

The objects of the Bill will include ensuring that exported goods meet the requirements of importing countries to enable and maintain market access for goods exported from Australia, that government and relevant industry standards are complied with, and that there is traceability of goods throughout the export supply chain, from production and processing to exporting, where required. The new legislation will ensure the integrity of goods as well as the accuracy of trade descriptions and official marks that are applied to goods.

The Bill will provide the Minister for Agriculture and Water Resources (the Minister) with the power to temporarily prohibit the export of certain goods, or the export of certain goods to a particular place, in circumstances where the Minister is satisfied that the prohibition is necessary to protect human, animal or plant life or health, or to secure compliance with an Australian law (other than the Bill). The Bill will also absolutely prohibit the export of split vetch.

Under the Bill, the export of ‘prescribed goods’ (being ‘goods’ that are set out in the rules) will be prohibited unless the requirements of the Bill or conditions specified in the rules are met. The Head of the Department of Agriculture and Water Resources (the Secretary) will be able to grant exemptions from one or more provisions of the Bill in relation to prescribed goods in certain circumstances. ‘Non-prescribed goods’ (being all goods other than prescribed goods) will not be subject to the same requirements for exporting as prescribed goods.

The new legislation will enable certificates to be issued for both prescribed and non-prescribed goods. Government certificates constitute evidence that goods that are to be, or have been, exported have been assessed as being compliant with the requirements of the Bill, and meet relevant importing country requirements.

The new legislation will set out the requirements for the export of goods from Australian territory. The rules will be able to prescribe conditions that must be complied with depending on the goods being exported. For example, the rules may require that:

  • export operations for a kind of prescribed goods are carried out at an accredited property or registered establishment or in accordance with an approved arrangement
  • a person must hold an export licence
  • an export permit has been issued
  • a notice of intention to export has been given
  • a trade description or official mark has been applied to the goods.

The Bill will also make provisions for the authorisation of persons to exercise certain powers and perform certain functions under the Bill. These powers will include conducting audits of export operations, carrying out assessments of goods, and giving directions that must be complied with by exporters and producers in the course of carrying out export operations relating to prescribed goods.

In order to deter people from engaging in conduct that contravenes the conditions and requirements of the Bill, and to ensure swift and effective enforcement, the Bill will provide for a range of powers that can be exercised by the Secretary or authorised officers, including those triggered by the Regulatory Powers (Standard Provisions) Act 2014. These powers will include action such as revocation and suspension of regulatory tools (for example, registration of establishments or export licences), as well as injunctions, enforceable undertakings and infringement notices. For more serious compliance issues, the Bill will provide for a number of civil penalty provisions as well as criminal offences.

The Bill will also provide for the Secretary to make a number of decisions, some of which may affect the interests of individuals. Where this occurs, individuals whose interests have been affected will be able to apply for the decision to be reviewed on its merits. These decisions will be able to be reviewed internally by the Secretary, or by a person to whom the Secretary’s power to review the decision has been delegated. Decisions will also be able to be reviewed externally by the Administrative Appeals Tribunal.

The use and disclosure of ‘protected information’ will be regulated under the Bill. Protected information will be able to be obtained under, or in accordance with, the Bill, and may then be used or disclosed in certain circumstances, in accordance with the Privacy Act 1988. A person may commit an offence if he or she uses or discloses protected information other than in accordance with the Bill.

Fees will be able to be charged under the Bill, on a cost-recovery basis, in relation to activities carried out by, or on behalf of, the Commonwealth (for example, by authorised officers) in the performance of functions or the exercise of powers under the Bill.

Finally, the Bill will delegate the power to make rules to the Secretary. The rules will be legislative instruments and will be subject to the requirements of the Legislation Act 2003, including parliamentary scrutiny, oversight, disallowance and sunsetting. The Bill includes a power for the Minister to issue directions to the Secretary about the Secretary’s rule-making power. Directions made by the Minister to the Secretary will be legislative instruments but will not be subject to disallowance or sunsetting. This will ensure that the Minister has appropriate oversight of the regulatory framework.

Detailed glossary of terms

Consultation documents

The Bill and RIS available below formed the basis for the submissions provided and are published as a part of the consultation from 25 August 2017 to 24 October 2017. These versions are provided for context only.

The Bill and the RIS were introduced into Parliament on 7 December 2016 and are available on the Parliament House website.

Related documents

DocumentPagesFile size
Exposure Draft Export Control Bill 2017 PDF4672.68 MB
Exposure Draft Export Control Bill 2017 DOC4672.56 MB
Exposure Draft Export Control Bill 2017: Outline PDF7977 KB
Exposure Draft Export Control Bill 2017: Outline DOCX71.91 MB
Regulation Impact Statement PDF531.27 MB
Regulation Impact Statement DOCX53980 KB
Regulation Impact Statement Factsheet PDF22 MB
Regulatory tools in the export control framework: where are they now? PDF1556 KB
Regulatory tools in the export control framework: where are they now? DOCX148 KB

If you have difficulty accessing these files, visit web accessibility for assistance.

Submissions on the Export Control Bill 2017

We received 25 submissions from businesses, industry and state and territory governments. A small number of submissions were marked confidential in part, or in their entirety.

We have considered all submissions, and where appropriate, changes were made to the Bill before it was introduced to Parliament.

Summary of general topics raised

[expand all]

Export Control Rules

FeedbackResponse
Industry should be consulted during the development of the operational and technical aspects of the commodity specific Rules.

The department will develop the Rules throughout 2018 and 2019.

Industry involvement in the development of the Rules is important to ensure they are fit for purpose. There will be ample opportunity for industry to provide feedback on the details of the provisions and consultation will be undertaken as each commodity specific rule is developed.

The Rules need to provide the same level of cover as the existing regulations, ensuring compliance and market access is not jeopardised.

The Rules will replace the current Export Control Orders.

The Rules will set out the operational requirements that agricultural exporters must meet and they will be based on the requirements set out in the current Export Control Orders.

Improvements to the export framework will not impact Australia’s commitment to meet importing country requirements.

Powers of the Secretary of the Department of Agriculture and Water Resources

FeedbackResponse

The Secretary of the Department of Agriculture and Water Resources has the power to make or change Rules. Industry consultation mechanisms must apply and there must be limitations for the scope and exercise of these powers.

The Bill delegates the power to make Rules to the Secretary of the Department of Agriculture and Water Resources, consistent with the powers given to the Minister under the current framework.

This allows the Australian Government to be more responsive to changes in the global trade environment and importing country requirements.

The Rules will be legislative instruments and will be subject to the requirements of the Legislation Act 2003, including parliamentary scrutiny, oversight, disallowance and sunsetting.

The Secretary will need to obtain appropriate government authority to make major changes to the Rules. Where changes to the Rules have more than a minor regulatory impact, they will need to be subject to a regulatory impact statement. Changes to minor matters (such as technical requirements) can be made more quickly. Stakeholder consultation regarding changes to the Rules is important.

The Bill also includes a power for the Minister to issue directions to the Secretary about the Secretary’s rule making power. This direction may require the Secretary to make specific Rules or take certain things into account in making Rules.

Directions made by the Minister to the Secretary will be a legislative instrument but will not be subject to disallowance or sunsetting. This will ensure the Minister has appropriate oversight of the regulatory framework.

The Secretary of the Department of Agriculture and Water Resources has broad powers to vary, suspend or revoke export licences.

The Bill does not override the requirement for the Secretary to provide procedural fairness in making decisions.

For decisions to vary, suspend or revoke licences the Secretary must give the holder a show cause notice before taking action, unless the circumstances are serious and urgent.

While the department recognises the significant consequences of suspension and revocation, it is appropriate to take immediate and decisive action in these situations.

The term ‘serious and urgent’ won’t be defined in the Bill given the variety of circumstances that might demand immediate action. The decision to suspend or revoke a licence is also a reviewable decision.

Temporarily or absolutely prohibiting goods from export

FeedbackResponse

Changes to the legislative power enable the Minister to temporarily or absolutely prohibit goods from export. A clear system of checks and balances and clarity on this power is required.

The Bill provides the Minister with the power to temporarily prohibit the export of certain goods, or the export of certain goods to a specified place, where satisfied that it is necessary to protect human, animal and plant life or health, or to secure compliance with an Australian law other than the Bill.

The Minister will have the power to temporarily or absolutely prohibit the export of goods from Australian territory, or from a part of Australian territory, for a period of up to six months. This determination will be able to be made if the Minister is satisfied it is necessary to protect human, animal or plant life or health.

A direction from the Minister is a legislative instrument and it must be tabled in Parliament where it is subject to disallowance. The Minister must exercise this discretion in compliance with Australia’s international obligations, including the General Agreement on Tariffs and Trade 1994.

Traceability

FeedbackResponse

Traceability, where required by the importing country, could be beneficial in some instances. Clarification on how the department will balance importing country requirements against the practicalities of the privacy laws and obligations of suppliers and growers and commercial outcomes is required.

The Bill provides the framework for regulating agricultural commodity exports where required, to facilitate market access and protect Australia’s reputation.

For many sectors, traceability across the supply chain is integral to maintaining market access. It is useful, therefore, to enable regulatory measures in the improved framework that assist with traceability to be applied in any sector in the future, should there be a need to do so.

There is no intention to change the existing regulatory requirements for traceability as a result of this project.

Compliance and Enforcement

FeedbackResponse

The inclusion of additional powers and the provision of a more graduated enforcement regime is welcomed. The Bill needs to articulate when it is appropriate to use specific powers.

The Bill seeks to apply the standard compliance and enforcement provisions in the Regulatory Powers (Standard Provisions) Act 2014. This will provide the department with a greater range of compliance and enforcement powers than those that are currently available under the current Act.

The department will be able to use a range of modern enforcement tools to deal with non-compliance, including criminal and civil penalties, infringement notices, enforceable undertakings, injunctions and administrative sanctions such as suspension or revocation. These changes ensure that non-compliance can be managed more effectively. 

The department will develop policies that guide how it targets its sanctions and responds to instances of non-compliance. These policies should not be set out in the Bill.

Fit and Proper Persons

FeedbackResponse

The new fit and proper person test is prescriptive in nature when compared to the current regime, including extending the required test to the assessment of associates.

The fit and proper person test aims to ensure that persons involved in the export supply chain are trustworthy and will not put Australia’s trade at risk.

The department will not hold a person to account for the actions of any or all of their associates, unless there is some suggestion that the associate is in a position to exercise influence over the person’s business or role.

Every decision involving the fit and proper person test is reviewable.

Transition

FeedbackResponse

The cost of transition can be quite high, so there must be a clear economic benefit to making this investment given the department’s financial resourcing.

The improvements to the agricultural export legislative framework are aimed at continued market access, rather than finding significant regulatory savings. Improvements will reduce complexity, duplication and ambiguity, making the legislation easier to understand, administer and use.

Improvements to the export framework will not impact Australia’s commitment to meet importing country requirements.

When will the transitional arrangements be developed?

The Export Control (Consequential and Transitional Provisions) Bill will be developed in 2018 and into 2019, and will be aimed at minimising impacts on industry. Consultation will be undertaken on the transitional arrangements ensuring industry are aware of their obligations.

Submissions

DocumentPagesFile size
Agriculture Victoria PDF2644 KB
AUS-MEAT PDF13893 KB
Austral PDF3472 KB
Australian Alpaca Association PDF1112 KB
Australian Food and Grocery Council PDF4208 KB
Australian Forest Products Association PDF3624 KB
Australian Livestock Exporters Council and Australian Livestock Export Corporation PDF6588 KB
Australian Lot Feeders' Association PDF5844 KB
Australian Pork Limited PDF2128 KB
Blue Ribbon Group PDF2284 KB
Community and Public Sector Union PDF3484 KB
Dairy Australia PDF3100 KB
Export Council of Australia PDF1284 KB
Feed Ingredients and Additives Association of Australia PDF2244 KB
Fonterra PDF2148 KB
Grain Trade Australia PDF11864 KB
National Farmers Federation PDF1260 KB
Red Meat Advisory Council PDF203.91 MB
Seafood Trade Advisory Group PDF4676 KB
Tasmanian Beekeepers Association PDF1508 KB

Published submissions may not meet Australian Government accessibility requirements as they have not been prepared by the department.

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