EXPLANATORY STATEMENT
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Export Control (Orders) Regulations 1982
Export Control (Animals) Order 2004
Subsection 25(1) of the Export Control Act 1982 (“the Act”) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act or necessary or convenient to be prescribed for the carrying out or giving effect to the Act.
Paragraph 25(2)(g) of the Act provides that the Governor-General may make regulations empowering the Minister to make orders, not inconsistent with the regulations, with respect to any matter for or in relation to which provision may be made by the regulations.
Regulation 3 of the Export Control (Orders) Regulations 1982 provides that the Minister may, by instrument in writing, make orders, not inconsistent with regulations made under the Act, with respect to any matter for or in relation to which provision may be made by regulations under the Act.
The Export Control (Animals) Order 2004 (“the Order”) regulates the export of live animals (including live-stock) and animal reproductive material.
The purpose of the Export Control (Animals) Amendment Order 2006 (No.1 ) (“the Amendment Order”) is to respond to five concerns raised by the Standing Committee on Regulations and Ordinances (“the Committee”) regarding the Order; to provide for the export by air transport of animals that are live-stock; to make certain changes to the arrangements for the export of live animals (other than live-stock), to make a number of stylistic changes and to make consequential changes to the Reader’s Guide.
In response to the Committee’s concerns, the Amendment Order:
- clarifies the intended meaning of “further period”;
- allows operators to re-apply for approval of registration no later than a specified number of days before the registration expires;
- clarifies that the time which an operator may show cause is within 14 days after service of the notice;
- expressly gives the Secretary power to suspend the registration of premises; and
- includes any condition the Secretary has imposed in the list of information that an exporter is required to give to an operator of registered premises.
The Amendment Order makes special provision for the export by air of animals that are live-stock. Formerly no distinction was made between the export of live-stock by sea or air. However, this approach imposed unnecessarily stringent and costly requirements on exporters using air transportation for live-stock.
Exporting live-stock or other species by air is a simpler process and has less impact on the animals than transportation by sea. The majority of consignments by air contain less than 50 head, simplifying selection processes and pre-export inspection. In contrast, sea consignments usually range in size between 3,000 to 120,000 head of live-stock. The journey times are much shorter on aircraft, generally less than 24 hours, which means there is no need to acclimatise animals to shipboard feed rations or train them to drink from special troughs. When transported by air, the animals are contained in crates and are lifted in and out of the aircraft, minimising the risk of injury on loading, during the journey and at unloading. The stockman and veterinarians, required on sea voyages to ensure that the animals have sufficient feed and water for the journey and to treat any injuries or illnesses that arise during the one to four week voyage, are not necessary for air shipments.
The key differences in the treatment of the export of live-stock by air compared with the export of live-stock by sea are:
- A consignment risk management plan (“a CRMP”) is not required for the export of live-stock by air because the duration of the journey and the number of animals does not require a high level of risk management;
- Premises for the preparation of live-stock to be transported by air are not required to be registered but must go through a less rigorous approval process because simpler arrangements and fewer animals are involved compared with the export of live-stock by sea; and
- It will no longer be necessary to apply for permission to leave the registered premises for loading or to apply for an export permit for the export of live-stock by air. The requirement to obtain permission to leave a registered premise for loading was originally included in the Order to prevent exporters loading ships with live-stock before an authorised officer had inspected the consignment. Once loaded, there are welfare issues associated with unloading stock. These issues do not arise with air transport as the animals are crated to load onto the plane. In addition, airlines do not allow animals to be loaded without evidence that an export permit has been granted and health certificate has been issued. By contrast, ships’ masters do allow exporters to load animals as soon the Australian Maritime Safety Authority has determined a vessel to be seaworthy.
The Amendment Order also makes certain amendments in relation to the export of live animals (other than live-stock) which include the removal of cold-blooded animals, such as insects, from the scope of the Order, except for certification purposes if such certification is required by the importing country; and the imposition of a prohibition on the export of live animals unless the exporter has obtained approval of a notice of intention to export (“a NOI”) and has complied with all the conditions to which the approval is subject. As well, the Amendment Order fills some gaps that exist in Part 3 of the Order in relation to the approval, notification and variation of NOI and the refusal to grant, and the revocation of, export permits.
Consequential changes have been made to the Reader’s Guide as a result of the changes made by the Amendment Order.
Consultation on industry proposals to amend the Order began early in February 2005 with individual exporters and representatives from the Australian Livestock Exporters Council (ALEC). These matters were also raised with the Secretary of the Department of Agriculture, Fisheries and Forestry at a meeting of the Western Australian Pastoralists and Graziers Association in Perth. Further consultations with industry representatives, exporters, accredited veterinarians and operators of registered premises have taken place at meetings convened by ALEC in Perth on 3 March and 14 April 2005, in Darwin on 13 April 2005 and Melbourne 18 May 2005.
The amendments were also discussed at the Australian Quarantine and Inspection Service (“AQIS”) Livestock Export Industry Consultative Committee meeting held on 19 May 2005. Representatives at that meeting include the Sheepmeat Council, Cattle Council, Meat and Livestock Australia, Australian Veterinary Association and National Animal Welfare Advisory Committee.
The Office of Regulation Review was consulted and advised that as the changes were of a minor and mechanical nature a Regulation Impact Statement was not required.
The Amendment Order is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the Amendment Order are set out below:
Section 1
1. This section provides that the Amendment Order is named the Export Control (Animals) Amendment Order 2006 (No. 1).
Section 2
2. This section provides that the new Order commences on the day after it is registered.
Section 3
3. This section provides that Schedule 1 amends the Export Control (Animals) Order 2004.
Section 4
4. This section provides transitional arrangements in relation to applications lodged for registration of premises before the commencement of the Amendment Order. In addition, in relation to premises registered before the commencement of the Amendment Order, this section makes it a condition of continued registration that the operator provide, on request, details of enclosed sheds on the premises.
Schedule 1 Amendments
Item 1
5. This item substitutes a new reader’s guide. The new guide reflects the changes made by the Amendment Order.
Item 2
6. This item inserts the definition for “AMLI Act” in section 1 which deals with definitions for the Order. The definition was located in the definitions section of Part 2 of the Order. However as a result of the creation of new provisions that refer to the “AMLI Act” in another part of the Order (Part 3), it is now necessary for the definition to be located in section 1.
Item 3
7. This item inserts the definition for “’live-stock” in section 1 which deals with definitions for the Order. The definition was located in the definitions section of Part 2 of the Order. However as a result of the creation of new provisions that refer to the “live-stock” in another part of the Order (Part 3), it is now necessary for the definition to be located in section 1.
Item 4
8. This item inserts a new heading for Part 2. The new heading reflects the fact that Part 2 now deals exclusively with the export of live-stock by sea.
Item 5
9. This item inserts an application provision into Part 2. This amendment is made because Part 2 now deals exclusively with the export of live-stock by sea.
Item 6
10. This item removes the definition of “AMLI Act” from the definitions section of Part 2. As a result of the creation of new provisions that refer to the “AMLI Act” in another part of the Order (Part 3), it is now necessary for the definition to be located in section 1 of the Order.
Item 7
11. This item removes the definition of “live-stock” from the definitions section of Part 2. As a result of the creation of new provisions that refer to “live-stock” in another part of the Order (Part 3), it is now necessary for the definition to be located in section 1 of the Order.
Item 8
12. This item inserts a definition of “enclosed shed”. This definition is necessary following the addition of requirements for information to be provided regarding enclosed sheds.
Item 9
13. This item removes the reference to “aircraft” in paragraph 2.202(h) of the Order. This amendment is made because Part 2 now deals exclusively with the export of live-stock by sea.
Item 10
14. This item inserts an additional requirement regarding the plans and specifications that must be included with an application for registration of premises used for the holding and assembling of live-stock for export by sea. In particular, the item amends paragraph 2.04(3)(c) to require details of ventilation and flooring for premises that are enclosed sheds. This amendment recognises that inappropriate ventilation and flooring in enclosed premises create an unhealthy environment for live-stock that may reduce their ability to remain healthy on sea voyages.
Item 11
15. This item inserts additional matters that must be addressed in the operations manual. An operations manual must be submitted with an application for registration of premises for the holding and assembling of live-stock for export by sea. In particular, the item amends paragraph 2.05(k) to require the operations manual or contain processes or arrangements for the disposal of animal wastes and maintenance of sanitation in the yards or sheds used to hold animals. This amendment recognises that if these matters are not properly managed live-stock will be held in an unhealthy environment that may reduce their ability to remain healthy on sea voyages.
Item 12
16. This item inserts a new criterion in subsection 2.07(1) for the registration of premises. The new criterion is whether, if the premises are an enclosed shed, the ventilation is adequate for the species proposed to the held in the shed. This amendment recognises that each species of live-stock may have different ventilation and flooring needs and that inappropriate ventilation and flooring in enclosed premises create an unhealthy environment for live-stock that may weaken their ability to remain healthy on sea voyages.
Items 13 and 14
17. Items 13 and 14 remove the requirement imposed by subsection 2.10(1) on the operator of a registered premise to comply with the Australian Standards for the Export of Live-stock (“the ASEL”) and instead require the Secretary when deciding whether to register a premise to take into account the extent to which the premise’s operations manual and facilities comply with the ASEL. These amendments give the Secretary the flexibility to register a premise without full compliance with the ASEL in cases where strict compliance is unnecessary.
18. This flexibility means that a wider range of premises will be able to meet the requirements for registration. The registered premises standards in the ASEL focus on criteria for commercial registered premises. Such premises receive large numbers of live-stock from many locations, some many hundreds of kilometres away, and therefore the ASEL include requirements for trough space, shelter, and watering facilities. These standards are not directly applicable to smaller, non-commercial premises, such as farms.
Item 15
19. This item makes a stylistic amendment to ensure consistent use of the expression “held or assembled” in section 2.10 of the Order. In particular, this item removes a reference to “prepared” in the expression “held or prepared” and replaces it with the word “assembled”.
Item 16
20. This item amends subsection 2.12(1) of the Order to specify that operators must re-apply for approval of registration no later than 1 month before the registration expires. This subsection has been amended to provide greater certainty in relation to the timeframe for re-applying for approval of registration in response to the Committee’s concerns about the previous wording in this subsection. In addition, this item removes the reference to “a further period” in anticipation of the amendment dealt with in the next item.
Item 17
21. This item amends subsection 2.12(2) to remove an incorrect reference and to refer to section 2.09. The effect of this item is to clarify that the duration of a renewed registration is set by the same rules that apply to an initial registration. The amendments made by this item are in response to the Committee’s concerns about subsection 2.12.
Item 18
22. This item amends section 2.14 to clarify that the notice inviting an operator to show cause why the registration of premises should not be cancelled must specify that a response is required within 14 days of service of the notice. The item also gives the Secretary specific power to suspend the registration of premises. The amendments made by this item are in response to the Committee’s concerns about section 2.14.
Items 19 and 20
23. These items remove the reference to “flight” in subparagraph 2.41(2)(b)(v) and the reference to “aircraft” in subparagraph 2.42(2)(d)(i) of the Order respectively. These amendments have been made because Part 2 now deals exclusively with the export of live-stock by sea.
Item 21
24. This item makes a stylistic change to clarify that criterion for approval set out in subsection 2.44(2) refers to the export proposed in a NOI or CRMP rather than the NOI or CRMP itself.
Items 22 and 23
25. These items remove the reference to “flight” in subsection 2.45(1) and the reference to “aircraft” in paragraph 2.45(3)(d) of the Order respectively. These amendments have been made because Part 2 now deals exclusively with the export of live-stock by sea.
Item 24
26. This item makes a stylistic change in anticipation of the insertion by the next item of a new paragraph after paragraph 2.45(3)(l).
Item 25
27. This item inserts a new paragraph into subsection 2.45(3) of the Orders. Subsection 2.45(3) specifies the information that an exporter must give to the operator of registered premises at which the relevant animals are to be held and assembled for export. The effect of the new paragraph is to require the exporter to give the operator the details of any conditions imposed by the Secretary on the approval of the NOI or CRMP. This requirement links back to the operator’s obligations under the conditions applicable to the registration of premises. In particular, paragraph 2.10(1)(e) of the Order states that the operator must not accept live-stock unless the operator is satisfied that the live-stock can be held and assembled at the premises in accordance with information given to the operator under subsection 2.45(3).
28. As a result of this amendment, the information now includes any conditions imposed by the Secretary on the approval of the NOI or CRMP. An example of a condition that may be imposed on the approval of the NOI or CRMP is that an exporter must notify AQIS before animals are loaded so that an authorised officer can be made available to supervise the loading. The amendment made by this item is in response to the Committee’s concerns about the absence of an obligation on the exporter to supply this information to the operator of registered premises.
Item 26
29. This item removes the reference to “aircraft” in paragraph 2.48(2)(c) of the Order. This amendment has been made because Part 2 now deals exclusively with the export of live-stock by sea.
Item 27
30. This item makes a stylistic change to the heading to Division 2.5. The effect of this and other similar amendments made by the Amendment Order is to regularise the use of the word “grant” in relation to export permits and the use of the word “issue” in relation to health certificates. This usage is consistent with the Act.
Item 28
31. This item clarifies that a declaration by an accredited veterinarian for the purposes of subparagraph 2.52(2)( c)(ii) is required only if the export is covered by an approved program.
Item 29
32. This item removes the reference to “aircraft” in subsection 2.54(1) of the Order. This amendment has been made because Part 2 now deals exclusively with the export of live-stock by sea.
Item 30
33. This item deletes the paragraph 2.54(3)(a), which requires an authorised officer to be satisfied, inter alia, that the exporter has an approved NOI and CRMP , because it is an unnecessary step. In particular, evidence of the existence of a duly approved NOI and CRMP is available from records held by AQIS.
Item 31
34. This item inserts a new subsection into section 2.54. The new subsection qualifies the requirement in paragraph 2.54(3)(g) that an authorised officer is to be satisfied about the fitness of each live-stock to undertake the voyage. The qualification provides that an authorised officer may be satisfied about the fitness for the voyage without needing to be assured of the fitness of every animal in a consignment. This qualification has been inserted to reflect the reality that it is impractical to assess the fitness of every individual consignment member, particularly when consignments may consist of up to 100,000 animals, before giving permission for the live-stock to leave for loading.
Items 32 and 33
35. These items remove the reference to “aircraft” in paragraphs 2.54(6)(c ) and 2.54(6)(d). These amendments have been made because Part 2 now deals exclusively with the export of live-stock by sea.
Item 34
36. This item removes a reference to “aircraft” and inserts a reference to “by sea” in subsection 2.58(1). These amendments have been made because Part 2 now deals exclusively with the export of live-stock by sea.
Item 35
37. This item makes a stylistic change to subsection 2.59(1). The effect of this and other similar amendments made by the Amendment Order is to regularise the use of the word “grant” in relation to export permits and the use of the word “issue” in relation to health certificates. This usage is consistent with the Act.
Item 36
38. This item removes a reference to “aircraft” in paragraphs 2.59(1)(a). This amendment has been made because Part 2 now deals exclusively with the export of live-stock by sea.
Items 37 and 38
39. These item make stylistic changes to subsection 2.59(2) and to paragraph 2.59(3)(b). The effect of this and other similar amendments made by the Amendment Order is to regularise the use of the word “grant” in relation to export permits and the use of the word “issue” in relation to health certificates. This usage is consistent with the Act.
Item 39
40. This item removes a reference to “flight” in paragraph 2.59(3)(e). This amendment has been made because Part 2 now deals exclusively with the export of live-stock by sea.
Items 40 and 41
41. These items make stylistic changes to subsections 2.59(6) and 2.60(1). The effect of this and other similar amendments made by the Amendment Order is to regularise the use of the word “grant” in relation to export permits and the use of the word “issue” in relation to health certificates. This usage is consistent with the Act.
Item 42
42. This item removes a reference to “aircraft” in paragraph 2.60(1)(a). This amendment has been made because Part 2 now deals exclusively with the export of live-stock by sea.
Items 43 and 44
43. These items make stylistic changes to subsections 2.60(2) and (3) and 2.61(7). The effect of this and other similar amendments made by the Amendment Order is to regularise the use of the word “grant” in relation to export permits and the use of the word “issue” in relation to health certificates. This usage is consistent with the Act.
Item 45
44. This item replaces the current Part 3 (“the old Part 3”) with a new Part 3. The old Part 3 dealt exclusively with live animals that were not live-stock. The new Part 3 is different from the old Part 3 in several ways. In particular, the new Part 3:
- deals with the export of live-stock by air;
- excludes cold-blooded animals (such as insects) from the definition of “live animal” except for certification purposes if such certification is required by the importing country;
- imposes some additional requirements on the export of live animals that are not live-stock; and
- creates some new powers to bring Part 3 into line with Part 2 - Part 3, which deals with the export of non-live-stock species, differed from Part 2 with respect to the powers to approve or vary NOIs, issue health certificates and grant, cancel or reissue export permits.
Part 3 Other export of live animals
New Section 3.01
45. This section provides that a reference in new Part 3 to the export of live animals is a reference to the export of live-stock by air and the export of live animals (other than live-stock) by any means. The effect of this section is to place the export of live-stock by air under the same arrangements that apply to the export of non-live-stock species, such as pigs and horses.
New Section 3.02
46. This section provides definitions for the Part which include a revised definition for “live-animal”. The new definition limits the definition to warm-blooded animals and to animals to be exported to a country that requires a health certificate to accompany the animals. This definition rectifies the oversight which included cold-blooded animals in the regulatory arrangements specifically tailored for warm-blooded animals.
New Section 3.03
47. This section reflects the content of the previous Part 3 with the addition of a prohibition on export of a live animal (including live-stock) unless a NOI is approved and any conditions complied with. Formerly, the approval of a NOI was not mandatory for an exporter of a live animal (other than live-stock). This new provision ensures that the Secretary receives the same minimum information for the export of both live-stock by air and live animals (excluding live-stock) by any means. The information supplied in a NOI assists AQIS in assessing and managing the risks that may arise from the proposed export.
New Section 3.04
48 This section sets out the information to be supplied in a NOI. It is similar to the equivalent provision in the former Part 3 except for the addition of an obligation imposed on the exporter to provide plans for meeting the relevant importing country requirements relating to pre-export quarantine or isolation, treatment and testing. The nature of the plans will vary according to the type of animal, the length of the voyage and the complexity of importing country requirements and the risks of non-compliance with those requirements. For example, more detailed plans may be required from the exporters of shetland ponies to Kuwait by sea than from exporters of dogs or cats by air.
New Section 3.05
49. This section which deals with when NOIs must be given to the Secretary, is similar to the equivalent provision in the former Part 3.
New Section 3.06
50. This section, which deals with approval of premises for pre-export quarantine or isolation, expands on the equivalent provision in the former Part 3 by empowering the Secretary to request an applicant for a NOI to allow an authorised officer to inspect the premises, sets criteria for approval and limits the approval to the period of preparation required for the consignment. These requirements are significantly less stringent than those that apply to the registration of premises for the preparation of live-stock to be exported by sea in Part 2. The lesser standard in this case is justified because acclimatisation to feed is not necessary for air shipments and the number of animals under preparation is generally much lower, simplifying pre-export selection and preparation.
New Section 3.07
51. This section, which deals with the approval of NOIs, has no equivalent provision in the former Part 3. It fills a gap in relation to the Secretary’s powers in to approve NOIs in Part 3 and is a modified version of the equivalent provision in Part 2. It applies to the export of all live animals under Part 3 but also specifies special requirements for exporters of live-stock by air. They are required to submit evidence that the exporter is licensed under the Australian Meat and Live-stock Industry Act 1997(AMLI Act) and describe how the exporter intends to meet any orders issued under that Act or conditions of the license that apply to the particular air consignment. The amendments also retain the capacity for AQIS to issue approved export program for live-stock exports by air.
New Section 3.08
52. This section explains the effect of an approval of a NOI. This section has no equivalent provision in the former Part 3. It is a modified version of the equivalent provision in Part 2.
New Section 3.09
53. This section, which deals with what happens if circumstances change, has no equivalent provision in the former Part 3. It fills a gap in relation to the exporter’s obligations and the Secretary’s powers and is a modified version of the equivalent provision in Part 2.
New section 3.10
54. This section, which deals with approved export programs for live-stock to be exported by air, has no equivalent provision in the former Part 3. It is substantially the same as the equivalent provision in the Part 2. An approved export program is described in subsection 9A(2) of the Act and its purpose is to ensure the health and welfare of live animals in the course of export activities. This section is limited to the export of “live-stock by air”.
New sections 3.11, 3.12 and 3.13
55. These sections provide for the variation of an approved export program; the suspension or cancellation of an approved program and for the payment of costs of an authorised officer. These provisions are substantially the same as the equivalent provisions in the Part 2.
New section 3.14
56. This section, which deals with the issue of health certificates, is substantially the
same as the equivalent provision in the former Part 3 with the addition of two new subsections. The new subsections allow the authorised officer issuing the certificate to take into account information contained in the NOI and any conditions attached to the approval of the NOI. These new subsections ensure that an authorised officer can take into account all the relevant information before granting the certificate.
New section 3.15
57. This section, which deals with the grant of an export permit for the export of live animals, is substantially the same as the equivalent provision in the former Part 3 with the addition of two new paragraphs. The new paragraphs require the Secretary to be satisfied that the NOI has been approved and that any conditions of approval have been met; and that, in the case of the export of live-stock by air, the exporter has complied with the AMLI Act and any conditions on the export licence and that if the export is covered by an approved program, an accredited veterinarian has made the required declaration.
Sections 3.16 and 3.17
58. These sections, which deal with refusal to grant a permit and revocation of an export permit respectively, fill a gap in the Secretary’s powers to refuse to grant or to revoke a permit in Part 3. The sections are substantially the same as the equivalent provisions in Part 2.
Items 46, 47 and 48
59. These items make stylistic changes to paragraph 4.01(a) and 4.04(2)(b) and subsection 4.04(4) . The effect of these amendments is to regularise the use of the word “grant” in relation to export permits and the use of the word “issue” in relation to health certificates. This usage is consistent with the Act.