Export Control (Fish and Fish Products) Amendment Orders 2006 (No. 2)

Administered by Department of Agriculture

Legislation au F2006L03927 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

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

 

Export Control (Orders) Regulations 1982

 

Export Control (Fish and Fish Products) Amendment Orders 2006 (No.2)

 

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 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 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 (Fish and Fish Products) Orders 2005 (the Principal Orders) regulate the export of fish and fish products.  Part 6 of the Principal Orders provides for audits of operations for the preparation of fish and fish products for export as food, for the export of fish and fish products as food and for the issue of export permits for fish and fish products. 

 

Order 60 of Part 6 provides that an audit may be conducted by an auditor who is an authorized officer or by an auditor approved by the Secretary.  The Secretary appoints authorised officers under section 20 of the Act.  An auditor is approved by the Secretary under clause 5 of Schedule 10 of the Principal Orders to perform an audit under Part 6.  Order 63 of Part 6 provides that an audit may be unannounced.

Order 65 of Part 6 of the Principal Orders specifies that the occupier, exporter and approved export permit issuer must provide such assistance to an auditor as is reasonably necessary to enable the auditor to perform the audit of their operations.  Failure to provide assistance may have serious consequences.  For example, failure to provide assistance is a ground of suspension or revocation of an approved arrangement under paragraph 21.1 (d) of Schedule 2 and subclause 15.3 of Schedule 9 of the Principal Orders.

 

The purpose of the Export Control (Fish and Fish Products) Amendment Orders 2006 (No. 2) is to amend Part 6 of the Principal Orders to impose obligations on an auditor (whether he or she is an authorized officer or not) to produce his or her identity card for inspection before starting an unannounced audit, to produce his or her identity card for inspection on request in relation to other audits and to conduct an audit as expeditiously as possible in a way that causes as little interference as possible to the operations that are the subject to the audit.  In addition, consequential amendments are made to Schedule 10 of the Principal Orders. 

 

If an auditor does not comply with these new obligations, the options include, in the case of an auditor who is an authorized officer, revocation of his or her appointment as an authorized officer and in the case of an auditor who is approved by the Secretary, revocation of the approval under subclause 11.1 of Schedule 10 of the Principal Orders.

 

These amendments are in response to concerns expressed by the Standing Committee on Regulations and Ordinances arising from the serious consequences that may flow from a failure to provide assistance to an auditor.

 

No consultation has occurred as the amendments are of a minor or machinery nature and do not substantially alter existing arrangements. 

 

The Amendment Orders are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Details of the Amendment Orders are set out below:

 

Order 1

 

1. This order provides that the name of these amending Orders is the Export Control (Fish and Fish Products) Amendment Orders 2006 (No. 2).

 

Order 2

 

2. This order provides that these Orders commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

 

 

Order 3

 

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

 

Schedule 1  Amendments

 

Item 1 inserts new suborders 63.2 and 63.3.  Order 63 provides that an audit may be unannounced.  New suborder 63.2 provides that if the audit is unannounced, the auditor must, before commencing the audit, produce his or her identity card for inspection.  New suborder 63.3 provides that if notice has been given of the audit, the auditor must produce his or her identity card for inspection on request. 

 

Item 2 inserts a new order 66A.  This new order imposes an obligation on an auditor to conduct an audit as expeditiously as possible and in a way that causes as little interference as possible to the operations the subject of the audit. 

 

Item 3 inserts new subclauses 5A.1 and 5A.2 in Schedule 10.  New subclause 5A.1 empowers the Secretary to issue an identity card to an approved auditor in a form approved by the Secretary.  New subclause 5A.2 makes it an offence for a person who has ceased to be an approved auditor to fail to return the identity card forthwith to the Secretary or a person nominated by the Secretary.  Subclause 5A.2, which has the words ‘penal provision’ at its foot, takes on the character of a strict liability offence provision with a maximum penalty of 10 penalty units as a result of the operation of order 6 of the Principal Orders and regulation 4 of the Regulations. Under section 4AA of the Crimes Act 1914 a penalty unit means $110.  An offence for failure to return an identity card has been created to deter misuse of the card.  A maximum penalty of 10 penalty units is considered sufficient to encourage compliance for this purpose.  

 

These new subclauses are inserted as a consequence of the amendments made by item 1 above as currently there is no requirement for auditors approved by the Secretary to be issued with an identity card.  By comparison, section 21 of the Act empowers the Secretary to issue identity cards to authorized officers.

Overview

The Export Control (Fish and Fish Products) Amendment Orders 2006 (No. 2) were enacted to address concerns arising from the serious consequences that may flow from a failure to provide assistance to an auditor during the export of fish and fish products, as regulated under the Export Control (Fish and Fish Products) Orders 2005. These amendments aim to impose additional obligations on auditors, whether they are authorized officers or approved by the Secretary, to enhance transparency and efficiency in the audit process. The problem these amendments sought to address was identified by the Standing Committee on Regulations and Ordinances, which highlighted the need for auditors to present their identity cards and to conduct audits with minimal interference to the audited operations. The policy objective is to ensure that audits are performed effectively and with due regard to the operations being audited, thereby maintaining the integrity and efficiency of the export control process. These Amendment Orders were made under the authority of the Minister for Agriculture, Fisheries and Forestry and are legislative instruments as defined by the Legislative Instruments Act 2003. They introduce minor but consequential amendments to the existing regulations, including the requirement for auditors to present their identity cards before commencing an unannounced audit and on request for other audits, as well as to conduct audits expeditiously with minimal operational disruption. Non-compliance with these new obligations may lead to the revocation of the auditor's appointment or approval, depending on their status as an authorized officer or an approved auditor. These amendments are considered minor and do not substantially alter existing arrangements, hence no consultation was conducted.

Scope and Application

The Export Control (Fish and Fish Products) Amendment Orders 2006 (No. 2) pertain to the regulation of the export of fish and fish products from Australia, extending the scope and obligations set out in the Export Control (Fish and Fish Products) Orders 2005. These Amendment Orders apply to individuals and entities involved in the export of fish and fish products, including occupiers, exporters, and approved export permit issuers, as well as auditors appointed to conduct audits under the Act. The regulations extend across the Commonwealth of Australia, imposing federal oversight on the export of fish and fish products. The Amendment Orders specifically target the conduct of audits of operations related to the preparation, export, and issuing of permits for fish and fish products. Notably, the new obligations include the requirement for auditors to produce their identity cards for inspection before commencing an unannounced audit and upon request for announced audits, as well as conducting audits with minimal interference to operations. Failure to comply with these obligations may result in the revocation of an auditor’s appointment or approval, with authorised officers facing revocation of their appointments and approved auditors facing revocation of their approvals. These amendments are intended to address concerns raised by the Standing Committee on Regulations and Ordinances regarding the serious consequences of failing to assist auditors, and are considered minor or machinery changes that do not substantially alter existing arrangements. The Amendment Orders are made under the authority of the Export Control Act 1982, with the amendments coming into effect on the day after they are registered on the Federal Register of Legislative Instruments.

Key Provisions

The Export Control (Fish and Fish Products) Amendment Orders 2006 (No.2) primarily amend the Export Control (Fish and Fish Products) Orders 2005 (Principal Orders) to introduce additional requirements for auditors conducting audits under the Act. The main operative sections include new suborders 63.2 and 63.3 (under Order 63), which mandate that an auditor must present their identity card for inspection before commencing an unannounced audit and upon request if the audit has been announced. Additionally, Order 66A requires auditors to conduct audits as quickly and with as little disruption as possible to the operations being audited. These amendments aim to enhance transparency and efficiency in the audit process. The Amendment Orders impose several obligations on auditors involved in the audit process. Firstly, they must present their identity card for inspection before commencing an unannounced audit (suborder 63.2) and upon request if the audit has been announced (suborder 63.3). This requirement ensures that the identity of the auditor is verified before the audit begins, thereby enhancing transparency. Furthermore, Order 66A mandates that audits be conducted as expeditiously as possible with minimal interference to the operations under audit, ensuring that the auditing process does not unduly disrupt business activities. Failure to comply with these new obligations can result in significant consequences. For auditors who are authorized officers, non-compliance can lead to the revocation of their appointment. For auditors approved by the Secretary, non-compliance can result in the revocation of their approval under subclause 11.1 of Schedule 10 of the Principal Orders. These measures are intended to enforce compliance with the new audit requirements. Additionally, the new subclauses 5A.1 and 5A.2 in Schedule 10 create an offence for failing to return an identity card to the Secretary or a nominated person, with a maximum penalty of 10 penalty units (approximately $1,100). This penalty is designed to deter misuse of the identity card and ensure that cards are returned promptly when an auditor's approval is revoked. The Amendment Orders also introduce a strict liability offence for failing to return an identity card, with a maximum penalty of 10 penalty units. This penalty is considered sufficient to encourage compliance and deter misuse. The introduction of these penalties underscores the importance of adhering to the new requirements and maintaining the integrity of the audit process.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.