Export Control (Dairy, Eggs and Fish) Amendment Orders 2005 (No. 1)

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Agriculture, Fisheries and Forestry

Export Control Act 1982

Section 3 of the Export Control Act 1982 (“the Act”) defines “prescribed goods” to mean goods, or goods included in a class of goods, that are declared by the regulations to be prescribed goods for the purposes of the Act. Section 7 of the Act provides that the regulations may prohibit the export of prescribed goods from Australia absolutely or to a specified place or unless specified conditions or restrictions are complied with or to a specified place unless conditions or restrictions are complied with.

Subsection 14(1) of the Act provides that a person shall not, in contravention of the regulations, manufacture, possess or take certain other action in relation to official marks and official marking devices. Subsection 14 (2) of the Act specifies that a maximum penalty of 5 years imprisonment applies to a contravention of subsection 14(1).

Subsection 25(1) of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or for giving effect to the Act. The matters that the regulations may make provision for include:

under paragraph 25(2)(f) of the Act, the prescribing of penalties not exceeding 50 penalty units for offences against the regulations; and
under paragraph 25(2)(g) of the Act, subject to subsection 25(3) of the Act, 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.

Subsection 25(3) of the Act states that an order shall not be made prescribing any penalty for an offence.

Regulation 3 of the Export Control (Orders) Regulations 1982 (“the Regulations”) 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 made under the Act.

The Export Control (Dairy, Eggs and Fish) Orders 2005 (“the Principal Orders”) identify the conditions and restrictions on the export of processed food for the purposes of section 7 of the Act. The Principal Orders also make provision for a range of matters that may be necessary to ensure the requirements of the Act are met including inspections, audit, approval of arrangements, issue of certificates and official marks.

The Principal Orders are to commence on 1 July 2005. The Principal Orders currently reference the Prescribed Goods (General) Orders 1985. The Export Control (Prescribed Goods—General) Order 2005 which is to commence on 1 July 2005 repeals the Prescribed Goods (General) Orders 1985.

The purpose of the Export Control (Dairy, Eggs and Fish) Amendment Orders 2005 (No. 1) is to amend the Principal Orders to:

replace each reference to the Prescribed Goods(General) Orders 1985 with a reference to the corresponding provision of the Export Control (Prescribed Goods—General) Order 2005 which will come into effect on 1 July 2005; and
ensure the correct relationship between the Export Control (Prescribed
Goods—General) Order 2005 and the Principal Orders, for example to ensure that there is no overlap with the sampling and analysis provisions or the official marks provisions of the Export Control (Prescribed Goods—General) Order 2005 and the Principal Orders; and
specify when the transitional arrangements under the Export Control (Prescribed Goods—General) Order 2005 apply to instruments in writing that relate to processed food; and
correct several typographic errors.

The Office of Regulation Review have advised that a Regulation Impact Statement is not mandatory. The proposed amendments are of a minor or machinery nature and do no substantially alter existing arrangements.

Details of Export Control (Dairy, Eggs and Fish) Amendment Orders 2005 (No. 1) are set out below.

Order 1

1. This order provides that the name of these amending Orders is the Export Control (Dairy, Eggs and Fish) Amendment Orders 2005 (No. 1).

Order 2

2. This order provides that these Orders commence on 1 July 2005.

Order 3

3. This order provides that Schedule 1 amends the Export Control (Dairy, Eggs and Fish) Orders 2005.

Schedule 1 Amendments

[1] Paragraph 4.2(a)

This amendment replaces a reference to the Prescribed Goods (General) Orders 1985 with a reference to the Export Control (Prescribed Goods—General) Order 2005.

[2] Paragraph 4.2(c)

This amendment replaces a reference to the Prescribed Goods (General) Orders 1985 with a reference to the Export Control (Prescribed Goods—General) Order 2005.

[3] Order 5

This amendment sets out which of the provisions of the Export Control (Prescribed Goods—General) Order 2005 apply to processed food for export as food. The purpose of this provision is to limit the application of the Export Control (Prescribed Goods—General) Order 2005 to those matters that are specifically incorporated. The amendment varies order 5 in the Principal Orders by replacing the references to the Prescribed Goods (General) Orders 1985 with the corresponding provision in the Export Control (Prescribed Goods—General) Order 2005.

The amendment in paragraph 5.1(b) excludes the operation of subparagraph 4.09(b)(iii) and Division 4.3 of the Export Control (Prescribed
Goods—General) Order 2005 thereby ensuring that existing policy and practice for registration that is for an indefinite term (ie rather than a fixed period) can continue.

Areas of potential overlap have been excluded. For example paragraph 5.1(c) removes overlap in relation to official marks provisions. And paragraph 5.1((f) removes overlap in relation to offence provisions for failing to comply with a direction that, under the Principal Orders, may be given by an authorized officer.

Suborder 5.2 provides that the reconsideration and review provisions of Part 16 of the Export Control (Prescribed Goods—General) Order 2005 apply to the extent specified in orders 98 and 99 of the Principal Orders.

Suborder 5.3 provides that to the extent specified in order 108 of the Principal Orders the transitional arrangements in subsection 18.02(2) the Export Control (Prescribed Goods—General) Order 2005 apply to instruments in writing made in relation to processed food that were made under the orders repealed by the Export Control (Prescribed Goods—General) Order 2005.

[4] Order 8, after the definition of ingredient

This amendment inserts a definition of initial decision. This amendment is necessary to ensure the correct relationship between the Principal Orders and the reconsideration and review provisions of Part 16 of the Export Control (Prescribed Goods—General) Order 2005. It is dependent on adoption of amendments [17] to [20] for orders 98 and 99.

[5] Order 8, definition of official mark

This amendment removes the definition of official mark. The adoption of the official marks provisions of the Export Control (Prescribed Goods—General) Order 2005 in amendments to suborder 5.1 (set out in amendment [3]) make this definition redundant.

The effect will be to ensure that all official marks declared under the Export Control (Prescribed Goods—General) Order 2005 are potentially covered under the requirements in the Principal Orders for official marks for use in processed food. This has required the further amendments to orders 72 and 73 of the Principal Orders that are set out in amendments [15] and [16].

[6] Order 8, definition of official marking device

This amendment removes the definition of official marking device. The adoption of the official marks provisions of the Export Control (Prescribed
Goods—General) Order 2005 in amendments to suborder 5.1 (set out in amendment [3]) make this definition redundant.

The effect will be to ensure that all official marking devices declared under the Export Control (Prescribed Goods—General) Order 2005 are potentially covered under the requirements in the Principal Orders for official marking devices for use for processed food in the Principal Orders. This has required the further amendments to orders 72 and 73 of the Principal Orders that are set out in amendments [15] and [16].

[7] Order 8, definition of person in management or control

This amendment replaces the reference to the Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005. The content of the definition is unchanged.

[8] Order 8, the definition of registered establishment

[9] Order 8, the definition of registered establishment, the Note

This definition removes the Note which is no longer applicable given that the Export Control (Prescribed Goods—General) Order 2005 no longer includes reinstatements and assignments of registration and that, under the Principal Orders, registration is to continue indefinitely. See explanation of the effect of paragraph 5.1(b) under amendment [3].

[10] Order 8, the definition of registration number

This amendment replaces the reference the Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005. The content of the definition is unchanged.

[11] Order 8, the definition of shellfish

This amendment corrects a typographical error by ensures the correct spelling of pipis.

[12] Suborder 9.1

This amendment removes the references to the Prescribed Goods (General) Orders 1985 which no longer has relevance as the Export Control (Prescribed Goods—General) Order 2005 no longer declares processed food to be prescribed goods.

[13] Suborder 20.9, the Note

This amendment replaces the reference to the reconsideration and review provisions of the Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005. The access to reconsideration and review set out in the Principal Orders is retained.

[14] Suborder 33.1, Note 4

This amendment replaces the reference to the application for registration provision of the Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005. The current position is retained.

[15] Order 72

This amendment is consequent on the adoption of the amendment to paragraph 5.1(c) set out in amendment [3]. Paragraph 5.1(c) as amended provides the requirements for the manufacture, possession etc of official marks and official marking devices that are set out in section 13.18 of the Export Control (Prescribed Goods—General) Order 2005 will apply. Contravention of these requirements is an offence under section 14 of the Act.

In order to ensure that the current position under the Principal Orders is retained it is necessary to ensure that where the manufacture, possession etc is for use for processed food, then it may be undertaken by an authorized officer, a person acting under the direction of an authorized officer or where permitted under an approved arrangement. This is provided for in the amendment in suborder 72.1.

In order to ensure that the current position under the Principal Orders is retained it also necessary to insert an additional prohibition (currently set out in suborder 72.3 of the Principal Orders) on altering or interfering with an official mark applied to processed food for export for food or to anything containing processed food for export for food. The prohibition applies unless the alteration of interference is undertaken by an authorized officer, a person acting under the direction of an authorized officer or is permitted under an approved arrangement. This is provided for in the amendment in suborder 72.2.

[16] Suborder 73.2

This amendment replaces the reference to the Prescribed Goods (General) Orders 1985 with a reference to the Export Control (Prescribed Goods—General) Order 2005. The amendment prohibits the application to processed food for export for food (or to anything containing processed food for export for food) of a resemblance of any official mark that is declared under the Export Control (Prescribed Goods—General) Order 2005.

[17] Order 98

This amendment when read in conjunction with the definition of initial decision inserted into order 8 by amendment [4] specifies when the review provisions of Part 16 of the Export Control (Prescribed Goods—General) Order 2005 apply. The effect of this amendment, together with amendments [4] and [18] to [20] is to retain the existing position under the Principal Orders for the availability of reconsideration and review.

[18] Order 99, the heading

This amendment ensures that the heading reflects the content of order 99 given the amendments made to order 99 in amendment [19].

[19] Order 99

This amendment replaces the reference to the Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005.

[20] Order 99, Note 2

This amendment replaces the reference to the Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005.

[21] Order 100

This amendment removes the provision for analysis of samples. The amendment is necessary to remove overlap with the analysis provision in section 4.02 of the Export Control (Prescribed Goods—General) Order 2005. Section 4.02 is adopted under subsection 5 set out in amendment [3].

[22] Order 102

This amendment removes the provision for certificates of analysis. The amendment is necessary to remove overlap with the corresponding provision in section 4.04 of the Export Control (Prescribed Goods—General) Order 2005. Section 4.04 is adopted under subsection 5.1 set out in amendment [3].

[23] Order 105, the heading

This amendment provides the correct date for the Export Control (Processed Food) Orders 1992.

[24] Paragraph 107.2(a)

This amendment replaces the reference to the Prescribed Goods (General) Orders 1985 with a reference to the Export Control (Prescribed Goods—General) Order 2005.

[25] After order 107

This amendment specifies when subsection 18.02(2) of the Export Control (Prescribed Goods—General) Order 2005 applies to instruments in writing that were made in relation to processed food under the Orders repealed by section 18.01 of the Export Control (Prescribed Goods—General) Order 2005. The effect of this amendment is that the instruments in writing to which subsection 18.02(2) does not apply do not continue in force.

[26] Schedule 1, subclause 1.1, the Note

[27] Schedule 1, subparagraph 2.1(b)(vii)

This amendment replaces the reference to the Prescribed Goods (General) Regulations 1985 with a reference to the Export Control (Prescribed
Goods—General) Order 2005.

[28] Schedule 1, subclause 5.1

This amendment replaces the reference to the requirements for alterations and additions that is set out in Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005. The current position is unchanged.

[29] Schedule 2, subclause 15.2, the Note

This amendment replaces the reference to reconsideration and review provisions of the Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005. The access to reconsideration and review set out in the Principal Orders is retained.

[30] Schedule 2, subclause 19.1, the Note

This amendment replaces the reference in the Note to notification provisions of the Prescribed Goods (General) Orders 1985 with the corresponding reference in the Export Control (Prescribed Goods—General) Order 2005. The current position is unchanged.

[31] Schedule 2, subclause 21.1, Note 4

[32] Schedule 2, subclause 22.1, the Note

[33] Schedule 3, subclause 3.2

[34] Schedule 5, after subclause 46.1

This amendment inserts a new subclause in order to make it clear that the requirement to retain an official mark during transport only applies to retaining the official mark that is a seal. This clarification is necessary as a consequence of amendment [5] which the removes the definition of an official mark.

[35] Schedule 9, subclause 11.3, Note 2

This amendment replaces the references to the fit and proper person requirements for persons in management or control in the Prescribed Goods (General) Orders 1985 with the corresponding references in the Export Control (Prescribed Goods—General) Order 2005. The current position is unchanged.

[36] Schedule 9, paragraph 14.2(a)