EXPLANATORY STATEMENT
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Export Control (Orders) Regulations 1982
Export Control (Animals) Amendment Order 2006 (No. 3)
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.
Section 9B of the Act enables regulations to be made for the accreditation of veterinarians for the purposes of undertaking approved export programs in relation to eligible live animals and eligible animal reproductive material. Eligible live animals and eligible animal reproductive material are defined in section 3 of the Act to mean prescribed goods consisting of live animals and animal reproductive material respectively.
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 as defined in the Order) and animal reproductive material. In addition, the Order regulates the accreditation of veterinarians for the purposes of undertaking approved export programs. Approved export programs are programs of activities 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 and the health and condition of eligible animal reproductive material in the course of export activities. The regulation of the accreditation of veterinarians in relation to export activities occurred as a result of the Australian Government’s response to the Keniry Report into Live-stock Exports, announced by the Minister for Agriculture, Fisheries and Forestry on 30 March 2004.
The purpose of the Export Control (Animals) Amendment Order 2006 (No. 3) (“the Amendment Order”) is to provide a more comprehensive scheme for the accreditation of veterinarians than that which was in force immediately before the commencement of the Amendment Order. The more comprehensive scheme:
- facilitates improved management of accredited veterinarians in line with the pivotal role they play in helping to maintain public confidence and the confidence of importing countries in Australia’s live-stock trade; and
- clarifies powers, rights and obligations and creates greater transparency and certainty in the administration of the accreditation of veterinarians.
In particular, the Amendment Order introduces application requirements and provides for the variation, revocation and suspension of accreditation. As well, the Amendment Order specifies the duration of accreditation and empowers the Secretary to accredit veterinarians for certain types of export programs. The Amendment Order also requires veterinarians to undertake a newly developed training course called the “AQIS Accredited Veterinarian Program” as a pre-condition of accreditation. In addition, transitional arrangements are in place to ensure that veterinarians who were accredited under the repealed provisions are not disadvantaged.
The Government’s response to the Keniry Report was made after consultation with all major stakeholders. In addition, the Australian Quarantine and Inspection Service (“AQIS”) wrote to all veterinarians known to be involved in the live-stock export industry as well as other stakeholders in September and October 2004 to describe the changes that would occur in response to the Keniry Report. The first stage of the changes was implemented by the Order. The Amendment Order represents the second stage of those changes.
The Amendment Order is a legislative instrument for the purposes of the Legislative Instrument Act 2003.
Details of the Amendment Order are set out below:
Part 1 – Preliminary
Section 1
1. This section provides that the Amendment Order is named the Export Control (Animals) Amendment Order 2006 (No. 3).
Section 2
2. This section provides that the Amendment Order commences on the day after it is registered.
Section 3
3. This section provides that Schedule 1 amends the Export Control (Animals) Orders 2004.
SCHEDULE 1 Amendments
Item 1
4. This item amends the Reader’s Guide to reflect the creation of a new Part (Part 4A) in the Principal Order. The new Part deals with the accreditation of veterinarians for live-stock export.
Item 2
5. This item omits Division 2.3 from the Order. Division 2.3 dealt with the accreditation of veterinarians for live-stock export. The accreditation of veterinarians is now dealt with in a new Part 4A inserted by the next item.
Item 3
6. This item inserts a new Part 4A. The new Part is entitled ‘Accreditation of veterinarians for live-stock export’. Details of the new Part are set out below:
Section 4A.01
7. This section provides definitions for veterinarian and serious offence for the new Part. The expression veterinarian has the same meaning that it had in repealed Division 2.3. The definition of serious offence is a new definition and it has been inserted because the expression is referred to in paragraph 4A.10 (1)(e) of the new Part.
8. Section 4A.10 specifies the grounds for revocation or suspension of accreditation and makes conviction of serious offence ‘of a kind that diminishes the confidence that Secretary could place in the person’ a ground for suspension or revocation of accreditation.
9. The expression serious offence is defined as having the same meaning as it has in the Export Control (Prescribed Goods – General) Order 2005 (‘the PGGO’). The definition of the expression in the PGGO is:
‘serious offence means an offence against a law of the Commonwealth or a State or Territory for which the maximum penalty is a period of imprisonment or a fine of 10 penalty units or more.’
Section 4A.02
10 This section states that when the Secretary gives a veterinarian a notice of accreditation for a State or Territory then that person is an accredited veterinarian for that State or Territory for section 9B of the Act. This section mirrors a section in the repealed Division 2.3 with the difference that the notice in this section limits the accreditation by reference to a State or Territory. The addition of the reference to a State or Territory enables the accreditation to be limited to the State or Territory in which the veterinarian is registered.
Section 4A.03
11. This section provides transitional arrangements. In particular, a veterinarian who was accredited before the commencement of the new Part is taken to be an accredited veterinarian for 6 months after the commencement. The 6 month transitional period gives a veterinarian time:
- to satisfy the new requirement for accreditation, namely, completion of the course known as the “AQIS Accredited Veterinarian Program”; and
- to apply for renewal of accreditation under section 4A.04 within the recommended timeframe of 1 month before the present accreditation lapses.
Section 4A.04
12. This section imposes new requirements on veterinarians who wish to become accredited veterinarians. In particular, the section requires veterinarians to:
- successfully complete a training program known as the “AQIS Accredited Veterinarian Program”, in addition to the existing requirement to successfully complete the training program known as the “Initial Accreditation Training Program of the Accreditation Program for Australian Veterinarians”, before applying for accreditation; and
- lodge an application for accreditation in a form approved by the Secretary providing the information set out in subsection 4A.04 (2).
13. It is not intended that an accredited veterinarian complete these training programs again before re-applying for accreditation. However, during a period of accreditation, an accredited veterinarian may be required to undertake specified further training under subsection 4A.09(1) which may include successfully completing these training programs again.
14. The purpose of the course known as the “AQIS Accredited Veterinarian Program” is to provide veterinarians with background information on the live-stock export trade and to inform them of their responsibilities as accredited veterinarians.
15. The information to be included in the application for accreditation includes proof of registration as a veterinarian; and a declaration of Australian citizenship if the veterinarian is seeking to be accredited for shipboard activities. The citizenship status of veterinarians is relevant to the ability to prosecute accredited veterinarians for offences under the Act if the offences occur outside of Australia.
16. The offences that apply to accredited veterinarians are set out in sections 9F, 9G and 9H of the Act. Section 9M of the Act applies extended geographical jurisdiction – category B to these offences because accredited veterinarians may carry out activities under approved export programs outside of Australia. Under the Criminal Code offences with extended geographical jurisdiction - Category B apply to:
- conduct by an Australian citizen or body corporate outside Australia (section 15.1 of the Criminal Code); and
- conduct by an Australian resident outside Australia if there is an equivalent offence in the law of the local jurisdiction (section 15.2 of the Criminal Code).
17. As it is very unlikely that any foreign jurisdictions to which live –stock is exported will have offences equivalent to the offences in section 9F, 9G and 9H of the Act, to ensure that enforcement action can be taken in respect of these offences, the accreditation of veterinarians who wish to undertake shipboard activities is limited to veterinarians who are Australian citizens.
Section 4A.05
18. This section sets the period of accreditation as 1 year from the date of the notice of accreditation unless the accreditation is withdrawn at the request of the veterinarian or revoked. The period of 1 year has been chosen as it is important that information such as a veterinarian’s registration and citizenship is updated regularly to ensure the integrity of the live-stock export trade.
Section 4A.06
19. This section empowers the Secretary to accredit a veterinarian for pre-export preparation of live-stock services or shipboard services or both. These two types of accreditation are recognised because veterinarians applying for accreditation for shipboard services must have Australian citizenship.
20. This section also empowers the Secretary to impose conditions on accreditation and to add, vary or remove the conditions by 7 days written notice if such action is reasonable in the circumstances. The need to impose a new condition might arise if, for instance, an importing country has raised concerns about the preparation of an earlier consignment of live-stock prepared by an accredited veterinarian. In these circumstances, the Secretary may want to have an authorised officer present when the accredited veterinarian prepares the next consignment of live-stock to the same country to confirm that there are no deficiencies in the accredited veterinarian’s preparation of the live-stock. To achieve this confirmation, the Secretary could impose a condition on the accreditation of the veterinarian requiring him or her to notify the Secretary at a specified time before the veterinarian commences certain activities in an approved export program so that the Secretary can arrange to have an authorised officer present.
Section 4A.07
21. This section empowers the Secretary to give a notice of accreditation to a veterinarian if he or she has successfully completed the 2 courses known as the “AQIS Accredited Veterinarian Program” and the “Accreditation Program for Australian Veterinarians” and has met all the other requirements in relation to an application for accreditation. The section also empowers the Secretary to publish a list of accredited veterinarians from time to time.
Section 4A.08
22. This section allows an accredited veterinarian to apply to the Secretary for a variation of accreditation. An accredited veterinarian may seek to vary, for example, the States and Territories to which his or her accreditation is limited.
Section 4A.09
23. This section empowers the Secretary to require, by a notice, that an accredited veterinarian undertake specified further training if it is likely to improve the veterinarian services to approved export programs. Once such a notice is given, the successful completion of the training is a condition of the veterinarian’s accreditation. This section also makes compliance with approved export programs a condition of a veterinarian’s accreditation.
Section 4A.10
24. This section provides the grounds for the Secretary to suspend or revoke accreditation and sets out the obligations of the Secretary when exercising the power to suspend or revoke accreditation.
25. In particular, the Secretary is required to give a written ‘show cause’ notice before taking suspension or revocation action unless there are grounds for immediate suspension as set out in section 4A.11. If at the end of the period required to be specified in the ‘show cause’ notice the veterinarian has not responded, the suspension or revocation takes effect on the date specified in the notice. If before the end of the period required to be specified in the ‘show cause’ notice the veterinarian responds to the notice, the Secretary must consider the response. If the Secretary then decides to proceed with the suspension or revocation, the Secretary must give the veterinarian a further notice stating that the accreditation is suspended or revoked, the date of effect of the action, if the action is suspension, the period of suspension, the grounds for the action and a statement of the veterinarian’s rights under section 6.03 of the Order.
Section 4A.11
26. This section sets out the circumstances when the Secretary may suspend the accreditation of a veterinarian without giving the veterinarian a ‘show cause’ notice. In particular, if the Secretary believes that there are urgent grounds (as defined in subsection 4A.11(4)) for suspension, the Secretary may, by giving a notice specifying, inter alia, the date that the suspension will come into effect, suspend the accreditation of a veterinarian.
27. The grounds for immediate suspension under this section are limited to any of the following grounds:
- providing false or misleading information in his or her application for accreditation; or
- ceasing to be registered as a veterinarian in the State or Territory for which the veterinarian is accredited; or
- has been convicted of a serious offence of a kind that diminishes the confidence the Secretary could place in that person as an accredited veterinarian; or
- repeated failure to keep records or make reports in accordance with the paragraph 4A.10(1) (f) or (g) of the Order; or
- repeated failure to comply with an approved export program.
28. In the case of immediate suspension, although a veterinarian does not have the opportunity to respond to a ‘show cause’ notice, he or she is required to be notified of his or her rights under section 6.03 of the Order and may seek reconsideration of the decision in accordance with those rights.
29. This power is considered necessary so that the Secretary can respond quickly and effectively to remove the accreditation of veterinarians who may compromise the integrity of the export activities in which they are involved.
Section 4A.12
30. This section explains the effect of suspension. In particular, a veterinarian is not taken to be accredited during any period that the accreditation is suspended and the accreditation cannot be renewed while the accreditation is suspended. A suspension cannot remain in force for more than 28 days and cannot be renewed.
Section 4A.13
31. This section sets out the circumstances in which a veterinarian whose accreditation has been revoked may apply for accreditation. The veterinarian is required to obtain the written permission of the Secretary to apply and the Secretary may only give his or her permission if he or she considers that the veterinarian is likely to comply with this Order if accredited.
Section 4A.14
32. This section imposes obligations on accredited veterinarians to keep certain records and makes accreditation subject to conditions relating to the retention of records and the production of those records. This section mirrors section 2.39 of the repealed Division 2.3 except for the following changes:
- in relation to a treatment involving the administration of a drug or product the accredited veterinarian must also keep a record of the name of the active constituent in the drug or product and the invoice received upon purchase for a drug or product administered to the live-stock; and
- the accredited veterinarian must produce documents requested by the Secretary in writing within 14 days or such lesser period specified by the Secretary rather than ‘within a reasonable period after the request’.
33. The new requirement for accredited veterinarians to keep the purchase invoice for a drug or product will enable an authorised officer to determine whether an accredited veterinarian had sufficient drugs available to administer the correct dosages.
34. The change specifying a time within which documents are to be produced results in greater certainty for both the Secretary and the accredited veterinarian.
Section 4A.15
35. This section details the reports to be provided by accredited veterinarians who are performing shipboard services under an approved export program. This section mirrors section 2.40 of the repealed Division 2.3 except for the requirement to report on the number of live-stock that gave birth and the estimated stage of pregnancy at the time of giving birth for each birth. The Australian Standards for the Export of Live-stock have specific requirements regarding the stage of pregnancy of live-stock undertaking export voyages. This information will enable the Secretary to monitor the accuracy of information given to him or her before the live-stock are loaded for the journey.
Item 4
36. This item inserts a footnote at the foot of subsection 5.03(3) of the Order. Section 5.03 deals with audit frequency and intensity. The footnote reminds the reader that the Secretary may impose a condition on the accreditation of a veterinarian regarding the intensity and frequency of audit. The Secretary’s power to do so is in subsection 4A.06(2) of the new Part.
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