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be law) on 1 April 2020 in accordance with the Legislation Act 2003 and must be reviewed before being either remade or repealed.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.
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.
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.