EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Agriculture and Water Resources

Export Control Act 1982

Export Control (Orders) Regulations 1982

Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2018

Legislative Authority

The Export Control Act 1982 (the Act) provides for the control of the export of certain goods and for related purposes.

Section 25 of the Act provides that the Governor-General may make regulations, empowering the Minister to make orders, not inconsistent with the Export Control (Orders) Regulations 1982 (the Regulations), with respect to any matters for or in relation to which provision may be made by the regulations.

Regulation 3 of 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 (Plants and Plant Products) Amendment (Accredited Properties) Order 2018 (the Accredited Properties Order) is made under regulation 3 of the Regulations.

Purpose

The Accredited Properties Order inserts provisions that allow the Secretary of the Department of Agriculture and Water Resources (department) to accredit properties into the Export Control (Plants and Plant Products) Order 2011 (the Plants Order). The purpose of the amendments is to improve the management of plant exports by strengthening the regulation of properties that produce or prepare certain plant products for export to certain importing countries.

Background

The export of plant and plant products is regulated by the Act and delegated legislation, including the Export Control (Prescribed Goods—General) Order 2005 (General Order) and the Plants Order. The primary objective of this export legislation is to provide assurance to importing countries that goods proposed for export meet their import requirements. To achieve this, the export legislation provides for Australian Government oversight of the export supply chain, including enabling the government to set conditions that must be met before goods can be exported from Australia. The legislation provides for the department to issue government certificates that attests that the goods have met required conditions before they are exported from Australia. The ability to provide this assurance is necessary to maintain and expand market access for Australian produce.

Australia has gained market access for export of a number of horticulture products on the basis of ‘protocol agreements’. These agreements have been bilaterally negotiated and endorsed by the department, as the Australian National Plant Protection Organisation (NPPO), and the counterpart NPPO of the importing country. These importing countries are known as ‘protocol markets’. Protocol agreements set out obligations of exporters, primary producers and the department, as Australia’s NPPO, for ensuring that exported products will meet the ‘phytosanitary’ (plant health) import requirements of the protocol markets; principally that such products are free from specific pests of concern to the importing country and are traceable across the export supply chain.

The department has entered into a growing number of protocol agreements in recent years, reflecting increased demand by importing countries and their consumers for assurance that goods exported from Australia are traceable, and have maintained their certified phytosanitary status throughout the supply chain.

As part of implementing protocol agreements, the department administers ‘export lists’ of properties that form part of supply chains for the export of certain kinds of horticultural products to specific protocol markets. The department referred to these properties as ‘export listed properties’. They include points of production (including farms, orchards and vineyards) and preparation (including packhouses and treatment facilities) in the export supply chain. In doing so, the Australian Government could provide assurance that only products produced or prepared at export listed properties in accordance with the protocol agreement conditions, could be exported to the specific protocol market.

Entry into protocol agreements is supported by stakeholder feedback received during the Agricultural Export Regulation Review, conducted by the department in 2015. The review found that most stakeholders are comfortable with the current level of regulation, recognising that it is necessary to protect market access and Australia’s international reputation as an exporter of high quality agricultural products.

However, stakeholder feedback noted that improvements could be made to better support Australia’s agriculture sector in a changing global trading environment. One suggested improvement was to provide stronger but more flexible regulation, which will support Australian exporters and primary producers to adapt to increasing market expectations for quality assurance and traceability, uphold Australia’s international reputation, and ultimately expand market access.

The Accredited Properties Order achieves this outcome for the export of plants and plant products by inserting a set of provisions that permit the Secretary to accredit properties for the export of prescribed plants and plant products to protocol markets. The Accredited Properties regulatory framework is a cost-effective and flexible regulatory control for Australian exporters and primary producers that will enable them to utilise compliance with administered departmental policy to demonstrate that the goods they produce or prepare for export to protocol markets meet import requirements. The Accredited Properties regulatory framework is separate to, but works in conjunction with Registered Establishments regulatory framework to regulate the end-to-end export supply chain, to ensure clear government oversight from production and preparation through to the export of such products from Australia.

The Accredited Properties Order allows for more flexible regulation of aspects of the plant and plant product export supply chain, by expanding on the current availability of Registered Establishments. The registration of establishments satisfies some specific importing country requirements, including the inspection of the product by an appointed authorised officer for compliance with importing country requirements. However, requiring managers of properties that produce or prepare goods for export to register their properties as registered establishments and be subject to fit and proper person and annual registration charge requirements would prohibit these individuals and businesses from participating in the production or preparation of goods for export to these markets. The cost and the level of regulation of registered establishments would have been inconsistent and disproportionate when considered in light of the purpose of an accredited properties framework. That purpose is to provide assurance to importing country authorities that, during the production or preparation of the goods at a property, pest and disease risks have been appropriately managed and mitigated, and the goods are traceable across the export supply chain. These amendments provide a level of regulatory oversight necessary and appropriate for the preservation of Australia’s international trade reputation, and to maintain and grow market access in a cost-effective and flexible manner.

The Accredited Properties Order is a legislative instrument for the purposes of the Legislation Act 2003. The details of the Accredited Properties Order are set out in Attachment A. This information has been provided to assist the reader and should be read in conjunction with the items in the Accredited Properties Order.

Impact and Effect

The Accredited Properties Order has little or no impact on previous operations and obligations of export listed properties producing and preparing plants and plant products for export to specific importing countries. The key changes arising from the commencement of the Accredited Properties Order are:

• administrative consequences, including suspension and revocation, as well as penalties for non-compliance with legislation;
• capturing importing country requirements and additional requirements as conditions and additional conditions for the accreditation of properties; and
• prescribed mechanisms to ensure greater rigour and procedural fairness in government decision-making.

For example, the amendments require decisions under Part 2A of the Plants Order to be accompanied by written notices of the decision setting out the particulars and reasons for the decision, and enable aggrieved managers of properties to seek reconsideration and review of such decisions under Part 16 of the General Order.

Additionally, instead of requiring managers of these properties to pay annual charges to register their properties as registered establishments, the amendments provide a specific regulatory scheme for properties that produce and prepare goods for export. The Accredited Properties regulatory framework allows these kinds of regulated premises to use existing phytosanitary security and traceability systems, established under export listed property arrangements, to demonstrate compliance with importing country requirements. These export goods still need to comply with the existing basic conditions for export, including that they have been prepared and inspected at registered establishments before they are exported.

Consultation

The Legislation Act 2003 requires the rule-maker, in this instance the Minister for Agriculture and Water Resources, to be satisfied that any consultation the rule-maker considers appropriate and reasonably practicable has been undertaken (section 17(1)). The department consulted with industry on a regular basis over 18 months prior to commencement regarding the nature, scope and progress of the Accredited Properties Order through the Horticulture Export Industry Consultative Committee (HEICC). This consultation was undertaken to ensure the legislation accurately formalises export listed property arrangements, in a manner that minimises impact to industry and Australia’s trade to specific protocol markets, and assists the department to maintain and build Australia’s market access.

Provisions of the Accredited Properties Order were developed to align, as far as it is appropriate to do so, with corresponding Chapter 3 - Accredited properties provisions of the Export Control Bill 2017 (the Bill). As such, stakeholder consultation on the Accredited Properties Order was undertaken in addition to and in conjunction with stakeholder consultation for the development of the Bill.

Stakeholder consultation was undertaken through the HEICC on the nature of the provisions of the Accredited Properties Order and in relation to the details of the underlying policy, operations, processes and systems that give effect to and support export listed property arrangements, in order to support compliance with the legislative provisions. This consultation drew on the knowledge of relevant subject matter experts and representatives from the horticulture industries that operated under export listed property arrangements and ensured that persons likely to be affected by the instrument had an a opportunity to comment on the content through their representative organisations.

The HEICC incorporates representatives of horticulture production and export industries, including:

• Apple and Pear Australia Ltd;
• Australian Horticultural Exporters’ and Importers’ Association;
• Australian Mango Industry Association;
• Australian Table Grape Association Inc.;
• AUSVEG Ltd;
• Cherry Growers Australia Inc.;
• Citrus Australia Ltd;
• Horticulture Innovation Australia Ltd;
• Nursery and Garden Industry Australia Ltd; and
• Summerfruit Australia Ltd.

Regulatory Impact Statement

The Office of Best Practice Regulation (OBPR) was consulted on the regulatory impact of the Accredited Properties Order. OBPR advised that the amendments to be introduced by the Accredited Properties Order are minor in nature and do not impose an additional impact to industry. Therefore, no Regulation Impact Statement was required (ID 21922).

Statement of Compatibility with Human Rights

The Accredited Properties Order is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The full statement of compatibility with human rights is set out in Attachment B.

ATTACHMENT A

Details of the Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2017

Section 1 – Name

This section provides that the name of this instrument is the Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2018 (the Accredited Properties Order).

Section 2 – Commencement

This section provides that the Accredited Properties Order commences the day after the Accredited Properties Order instrument is registered.

Section 3 – Authority

This section provides that the Accredited Properties Order is made under regulation 3 of the Export Control (Orders) Regulations 1982 (the Regulations). The Regulations, which are made by the Governor-General under section 25 of the Export Control Act 1982 (the Act), allow the Minister to make orders for the purpose of giving effect to the Act.

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule of the Accredited Properties Order is amended or repealed as set out in the applicable items in the Schedule, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Export Control (Plants and Plant Products) Order 2011

This Schedule amends the Export Control (Plants and Plant Products) Order 2011 (Plants Order) by inserting a new Part into the Plants Order that provides for the accreditation of properties (Part 2A—Accredited properties); inserting a Division that provides transitional provisions that recognise export listed properties and their prescribed goods that existed immediately before commencement day; and inserting provisions to provide for the audit of accredited properties.

Item 1 – Subsection 5.1

This item inserts the following definitions in subsection 5.1 of the Plants Order:

accredited property
This term is defined as meaning a property that is accredited under the Part 2A.

cost-recovery charge
This term is defined as meaning:

• a fee provided by the Export Control (Fees) Order 2015 (Fees Order); for example, fees in connection of with the performance of audits and inspections;
• a charge imposed by the export charges legislation; for example, charges in relation to registered establishments for operations associated with the preparation of prescribed goods for export to a certain importing country under the Export Charges (Imposition—General) Regulation 2015;
• a late payment fee relating to such a fee or charge.

importing country requirement
This term is defined as meaning, in relation to prescribed goods that are to be imported into a country from Australia, a requirement of that country that must be met before the prescribed goods may be imported into that country from Australia. Importing country requirements may include:

• specific crop monitoring activities for pests of quarantine concern to the importing country are undertaken by a grower during the production of prescribed goods for export;
• prescribed goods must have been produced and prepared in a particular area of Australia that has a recognised pest free status; and
• only certain varieties of a prescribed good may be exported to the importing country.

manager
The term manager of a property is defined as meaning the person who is responsible for the day-to-day management of the property.

property
This term is defined as having the same meaning as premises. Premises is defined under section 3 of the Act as including:

• a building, aircraft, vehicle or ship;
• a place (whether enclosed, or built on, or not and whether on land, or in or on water, or not);
• a part of a thing or place referred to in paragraph (a) or (b).

This definition of property is intended to enable the Secretary to accredit any kind of property that produces or prepares prescribed goods for export depending on what is required by the Secretary for the purpose of meeting the requirements of the particular importing country. For example, properties can include:

• farms, orchards and vineyards that produce or prepare prescribed goods; or
• packhouses and treatment facilities that prepare prescribed goods.

The definition and inclusion of a part of a thing or place enables the Secretary to accredit single or multiple parts of properties, including blocks or lots on a farm, or individual treatment rooms in a treatment facility.

Item 2 – After subsection 9.1

This item inserts subsection 9.1A into section 9 of the Plants Order. Subsection 9.1A provides an additional condition under section 9 of the Plants Order specifically dealing with the production and preparation of goods for export at accredited properties. The conditions on export imposed by section 9 must be met, to the extent that they apply to a consignment, before a consignment of goods can be exported from Australia.

Subsection 9.1A condition provides that if the Secretary requires that the goods be produced or prepared at an accredited property for the purpose of meeting the requirements of the importing country, that the goods must have been produced or prepared at a property that is accredited for the production or preparation of such goods. In addition, at the time the goods are inspected for export compliance under Part 5 of the Plants Order, the accreditation of the property must not have been suspended or revoked.

The provision requires plants and plant products proposed for export to certain importing countries to be produced or prepared at an accredited properties.

Under Section 8 of the Act, where under the regulations the export of prescribed goods is prohibited unless specified conditions or restrictions are complied with:

• a person who exports the prescribed goods in contravention of the conditions or restrictions commits an offence; and
• a person who conveys or has in his or her possession the prescribed goods commits an offence if:
  • the person intends to export the goods in circumstances that would constitute a contravention of the conditions or restrictions; or
  • the goods are intended to be exported in circumstances that would constitute a contravention of the conditions or restrictions.

Where under the regulations the export of prescribed goods to a specified place is prohibited unless specified conditions or restrictions are complied with:

• a person who exports the prescribed goods to that place in contravention of the conditions or restrictions commits an offence; and
• a person who conveys or has in his or her possession the prescribed goods commits an offence if:
  • the person intends to export the goods to that place in circumstances that would constitute a contravention of the conditions or restrictions; or
  • the goods are intended to be exported to that place in circumstances that would constitute a contravention of the conditions or restrictions.

Subsection 8(5) of the Act provides that contravention of these provisions is punishable on conviction by imprisonment for a period not exceeding 5 years.

Item 3 – After Part 2

This item inserts Part 2A—Accredited properties after Part 2 of the Plants Order. This Part provides for the accreditation of properties, including provisions for the following:

• applications for the accreditation of a property, and the renewal and variation of the accreditation (including requirements for, and the powers of the Secretary to deal with, such applications);
• provisions for managers of accredited properties to request to have the accreditation suspended or revoked by the Secretary;
• the powers of the Secretary to vary, suspend and revoke an accreditation; and
• the obligations of managers of accredited properties and offences for failure to comply with those obligations.

Part 2A includes Divisions 1 – 7, containing sections 9A to 9ZJ.

Part 2A—Accredited properties

Division 1—Application for accreditation

Section 9A  Application for accreditation of property

Subsection 9A.1 provides that the manager of a property may apply to the Secretary to accredit a property for a kind of operations in relation to a kind of prescribed good. For example, the manager of an orchard may apply to be accredited to produce oranges (for export). The accreditation of properties that produce or prepare prescribed goods for the purpose of meeting importing country requirements is important to allow some regulatory controls to be in place early in the supply chain and to allow traceability of the final exported product back to its source, and to ensure compliance with those importing country requirements.

The application for accreditation must relate to:

• a kind of operations, for example the production (including growing, picking or harvesting) of prescribed goods for export, or the preparation (including packing, storing or treating) of prescribed goods for export; and
• a kind of prescribed goods, for example, a kind of fresh fruit or vegetable.

Paragraph 9A.2(a) provides that the accreditation may cover more than one kind of operations in relation to more than one kind of prescribed goods. Therefore, a property may be accredited to grow and harvest several different types of fruit, such as apples and pears (or simply one variety of fruit, such as navel oranges) as well as to process, pack and store the fruit for export. Section 9A is intended to be flexible to ensure that diverse requirements of an importing country can be accommodated at the point of application for accreditation, and to recognise the variety in those types of properties that produce and prepare prescribed goods for export to these markets.

Paragraph 9A.2(b) provides that the accreditation may, but is not required to, specify one or more places to which the prescribed goods may be exported. This paragraph provides a manager with the flexibility to make appropriate commercial decisions for their property and elect to specify, in their application for accreditation, one or more particular importing country to which their goods may be exported. Provisions about requirements for applications are set out in sections 9ZF – 9ZJ.

Section 9B  Secretary must decide whether to accredit property

Subsection 9B.1 provides that on receiving an application under section 9A, the Secretary must decide to either accredit the property or refuse to accredit the property. Section 9ZJ provides what the Secretary may do for the purpose of dealing with the application including, for example, requesting that the applicant provide additional information, or give a demonstration of the operations of the property. A decision by the Secretary to accredit a property would not prevent the manager of an accredited property from producing or preparing prescribed goods for export to markets where accreditation is not required.

Three notes are included at the end of subsection 9B.1. Note 1 refers the reader to section 9ZJ which covers matters relating to dealing with applications.

Note 2 provides that if the application is for more than one kind of operations; in relation to more than one kind of prescribed goods; or in relation to one or more places, the Secretary has the discretion to accredit or refuse to accredit a property for any combination of those operations, prescribed goods or places of export. This is intended to minimise the impact to industry and to continue enable the department to facilitate the compliant production, preparation, and export of prescribed goods to applicable importing country.

Note 3 provides that if the Secretary decides to refuse the application, in whole or in part, that the decision is a reviewable decision and Part 16 of the General Order sets out how decisions are reconsidered and reviewed.

Subsection 9B.2 provides that the Secretary may accredit the property if satisfied, having regard to any matter that the Secretary considers relevant, that:

• prescribed goods produced or prepared at the property will meet relevant importing country requirements;
• the conditions of the accreditation will be complied with; and
• no cost-recovery charge in relation to the property is due and payable unless non-payment is due to exceptional circumstances.

Relevant importing country requirements could include, for example:

• that fruit being exported to that country must be grown and packed in designated areas of Australia that are free of Queensland fruit fly; and
• that only goods produced under a recognised certification scheme are permitted to be exported to that country.

Due to the variety of relevant importing country requirements and conditions that exist for each prescribed good, operation and country combination and the corresponding matters or evidence that could be considered in order for the Secretary to make a decision, it is necessary to ensure that the Accredited Properties Order provides the Secretary with flexibility to consider any matter the Secretary considers relevant. Matters or evidence the Secretary could consider include, for example:

• certification from a relevant State or Territory authority that the property growing and packing the goods is located in a designated and recognised pest free area;
• laboratory testing results; and
• crop monitoring results for pests of quarantine concern to that country.

Subsection 9B.3 provides the Secretary with the discretion to set an expiry date for an accreditation if the Secretary considers it appropriate. Where an expiry date of the accreditation of the property is set this expiration date will be included in the notice of approval to provide certainty for accredited property managers regarding the period of effect of their accreditation. A decision to set an expiry date on an accreditation is a reviewable decision. A note at the end of subsection 9B.3 provides that if an expiry date is not set, the accreditation remains in force unless the accreditation is revoked.

Section 9C  Conditions of accreditation

Section 9C provides that the accreditation of a property for a kind of operations in relation to a kind of prescribed goods is subject to:

• relevant importing country requirements in relation to those operations and those prescribed goods; and
• any additional conditions that the Secretary considers are appropriate for the accreditation. These additional conditions must be set out in the notice given under section 9D.

Three notes are included at the end of section 9C. Note 1 provides that a failure to comply with a condition may result in the accreditation being suspended (see paragraph 9T.1(b)) or revoked (see paragraph 9Y.1(b)). Note 2 provides that, in accordance with section 9ZB, the manager of an accredited property commits an offence if a condition of the accreditation is contravened. An offence under section 9C is subject to a level 5 penal provision. Regulation 4 of the Regulations provides that a level 5 penal provision equates to a fine of 50 penalty units. Note 3 refers the reader to Division 6, which sets out additional obligations of the manager of an accredited property.

The Accredited Properties Order is not intended to restrict the conditions that may be imposed on an accredited property. The accredited properties provisions provide flexibility to accommodate the evolving nature of importing country requirements and maintain market access for Australian producers. The ability to impose any additional conditions may be necessary to ensure that the accreditation will be suitable for the operations that the accreditation will cover and that it meets the requirements of the Accredited Properties Order. For example, managers of farms and orchards must comply with different conditions to managers of packhouses and treatment facilities. Furthermore, different types of treatment facilities have different phytosanitary treatment methods, rates and standards depending on the commodity and the treatment pathway they are accredited for. This could include cold treatment, fumigation, irradiation and vapour heat treatment, depending on what the relevant importing country has approved. The provisions also reflect the likelihood that requirements and conditions for production and preparation of prescribed goods for export may need to change from time to time to address certain export risks and to maintain market access, and that these conditions may need to commence at short notice.

Section 9D  Notice of decision

If the Secretary approves an application for accreditation, then under subsection 9D.1, the Secretary must give the applicant a written notice that sets out the information that the manager needs to know about the accreditation. For example, the written notice must state:

• the type of operation(s) covered by the accreditation;
• the prescribed goods that may be produced or prepared under the accreditation;
• if applicable, the places to which the prescribed goods may be exported to under the accreditation; and
• the date the accreditation takes effect and whether it remains in force indefinitely or has an expiry date.

The notice must also set out any additional conditions that apply to the accreditation. The primary intent of the written notice is to inform the applicant of the Secretary’s decision as well as to provide clarity about the conditions that will apply to their accreditation. Providing this information enables the applicant to readily identify the matters covered by the accreditation and the conditions of the accreditation that must be complied with.

If the Secretary decides not to accredit the property in whole or in part, then under subsection 9D.2, the Secretary must give the applicant written notice of the decision, including reasons for the decision and a statement that the applicant may apply for reconsideration and review under Part 16 of the General Order. Where the Secretary only approves the application for accreditation in part, the notice of decision can include both notice of approval and refusal.

Subsection 9D.3 provides that a failure to give notice of a decision as required under subsection 9D.2 does not affect the validity of the decision. The written notice provided under subsection 9D.2 ensures that a person is able to understand the reasons for the decision and is aware of his or her right to review. However, as decisions made under the Act and the Plants Order are made to give effect to the intention of the Act and the Plants Order, it is not appropriate for such decisions to be found invalid because notice was not provided to the applicant whose interests are being affected by the decision.

Section 9E  Period of effect of accreditation

If there is no expiry date set for the accreditation, subsection 9E.1 provides that the accreditation remains in force unless it is revoked under Division 5 of Part 2A.

Subsection 9E.2 provides that if there is an expiry date, it remains in force until that date unless it is renewed under Division 2 of Part 2A or revoked under Division 5 of Part 2A.

This section provides a legislative basis for the Secretary to regulate properties producing or preparing prescribed goods for export to certain importing countries for a set period, for example on an annual basis. The section provides clarity and certainty to managers of accredited properties in relation to their obligations, the period of effect of the accreditation, and the circumstances such as a revocation or renewal that may change this period.

Division 2—Renewal of accreditation

Section 9F  Application to renew accreditation of property

Subsection 9F.1 provides that if there is an expiry date for an accreditation, including a property that is currently suspended under Division 4 of Part 2A, section 9F applies. Subsection 9F.2 provides that the manager of an accredited property may apply to the Secretary to renew the accreditation. A note is included at the end of subsection 9F.2 referring the reader to Division 7, which provides the requirements for applications, including applications to renew the accreditation.

Subsection 9F.3 provides that the application may relate to more than one kind of operations, more than one kind of prescribed good and may specify one or more places to which the prescribed goods are to be exported. It is intended that applications to renew do not have to relate to all the matters that a property is currently accredited for, and can cover the same matters or different matters. This is aimed at minimising the regulatory burden on industry and streamlining the renewal process.

Under subsection 9F.4, the application for renewal must be made at least 28 days before the expiry date of the accreditation, or within a longer period if allowed by the Secretary. This provides the Secretary with the flexibility to set an appropriate period for the consideration of the application.

Subsection 9F.5 provides that if the application is made after the period applying under subsection 9F.4, then it is taken to be a new application to accredit the property and the sections in Division 1 of Part 2A (that is, those dealing with new applications) and the remaining provisions in Division 2, dealing with renewals, will not apply.

Section 9G  Secretary must decide whether to renew accreditation

If the Secretary receives an application to renew the accreditation, subsection 9G.1 provides that the Secretary must decide whether to renew, or refuse to renew, the accreditation.

There are three notes included after subsection 9G.1. Note 1 refers the reader to section 9ZJ, which sets out what the Secretary may do in dealing with the application including, for example, requesting consent to enter premises of the applicant to inspect, examine or evaluate operations carried out in relation to prescribed goods to which the application relates.

Note 2 provides that if the application to renew is for more than one kind of operations, prescribed goods, or places of export, the renewal of the accreditation may cover some or all of the matters included in the application for renewal or only cover a subset of those matters.

Note 3 provides that if the Secretary decides to refuse the application in whole or in part, that the decision is a reviewable decision under Part 16 of the General Order.

Subsection 9G.2 provides that the Secretary may refuse to renew the accreditation in whole or in part if the Secretary is not satisfied, having regard to any matter that the Secretary considers relevant, of one or more of the following:

• prescribed goods produced or prepared at the property will meet relevant importing country requirements;
• the conditions of the accreditation have been, and are being, complied with;
• the manager of the property has complied with the requirements of the Act, the Plants Order and the requirements of any other instrument in force under the Act that applies in relation to the accreditation, and the operations and prescribed goods covered by the accreditation; and
• whether a cost-recovery charge in relation to the property is due and payable unless where non-payment is due to exceptional circumstances.

Due to the variety of relevant importing country requirements and conditions that exist for each prescribed good, operation and country combination and the corresponding matters or evidence that could be considered in order for the Secretary to make a decision, it is necessary to ensure that the Accredited Properties Order provides the Secretary with flexibility to consider any matter the Secretary considers relevant. For example, the Secretary may not be satisfied, based on a consideration of crop monitoring records that the product grown at the property will meet importing country requirements.

It is intended that when considering an application for renewal, unlike an initial application for accreditation, the Secretary will not be limited to considering whether the manager will meet the requirements, but will also have the discretion to consider:

• past compliance with the conditions of the accreditation; and
• the manager’s past compliance with the requirements of the Act, the Plants Order and any other instrument in force under the Act that applies in relation to the accreditation, and the operations and prescribed goods covered by the accreditation.

Subsection 9G.3 provides that the Secretary may set an expiry date for the renewal, if the Secretary considers it to be appropriate. A note under subsection 9G.3 provides that as per subsection 9E.1 if an expiry date is not set, the accreditation remains in force unless it is revoked.

Section 9H  Conditions of renewed accreditation

Section 9H provides that the renewal of the accreditation is subject to:

• conditions that are referred to in subsection 9C.1 (being relevant importing country requirements); and
• any additional conditions that the Secretary considers are appropriate for the renewal and that are specified in the notice of decision to renew given to the applicant under subsection 9J.1.

Section 9H is not intended to restrict the conditions that may be imposed on an accredited property. Section 9H provides flexibility for the Secretary to determine the conditions that are suitable for the type of property, the kind of operations performed at the property and the kind of prescribed goods produced or prepared, as well as accommodating the evolving nature of importing country requirements to maintain market access for Australian producers. The ability to impose any additional conditions will be necessary to ensure that the accreditation will be suitable for the operations that the accreditation will cover and that it will meet the requirements of the Accredited Properties Order. The provisions also reflect the likelihood that requirements and conditions for production and preparation of prescribed goods for export may need to change from time to time to address certain export risks and to maintain market access, and that these conditions may need to commence at short notice.

Three notes are included after section 9H. Note 1 provides that a failure to comply with a condition may result in the accreditation being suspended (see section 9T) or revoked (see section 9Y). Note 2 refers the reader to section 9ZB, which provides that the manager of an accredited property commits an offence if a condition of the renewed accreditation is contravened. An offence under section 9ZB is subject to a level 5 penal provision. Regulation 4 of the Regulations provides that a level 5 penal provision equates to a fine of 50 penalty units. Note 3 refers the reader to Division 6 of Part 2A, which sets out additional obligations on managers of accredited properties.

Section 9J  Notice of decision

Section 9J provides that if the Secretary approves the renewal of an accreditation, the Secretary must give the applicant a written notice stating the information as provided in subsection 9D.1 including, for example, the accreditation number allocated to the property, the kind of operations and each kind of prescribed goods covered, the places the prescribed goods covered by the accreditation may be exported to. The primary intent of the written notice is to inform the applicant of the Secretary’s decision as well as to provide clarity about the conditions that will apply to their accreditation. Providing this information enables the applicant to readily identify the matters covered by the accreditation and the conditions of the accreditation that must be complied with under the renewal.

Subsection 9J.2 provides that if the Secretary decides not to accredit the property in whole or in part then the Secretary must give the applicant written notice of the decision, including reasons for the decision, and a statement that the applicant may apply for reconsideration and review under Part 16 of the General Order.

Where the Secretary only approves the renewal in part, the notice of decision can include both notice of approval and refusal.

Subsection 9J.3 provides that a failure to give notice of a decision as required under subsection 9J.2 does not affect the validity of the decision. The written notice provided under subsection 9J.2 ensures that a person is able to understand the reasons for the decision and is aware of his or her right to review. However, as decisions made under the Act and the Plants Order are made to give effect to the intention of the Act and the Plants Order it is not appropriate for such decisions to be found invalid because notice was not provided to the applicant whose interests are being affected by the decision.

Division 3—Variation of accreditation

Subdivision A—Application by manager

Section 9K  Application by manager for variation of accreditation or approval of alteration of property

Subsection 9K.1 provides that the manager of an accredited property may apply to the Secretary to vary the accreditation in a range of circumstances. Paragraph 9K.1(a) provides that the application for variation may be to vary matters covered by the accreditation, including the kinds of operations, prescribed goods or places to which the prescribed goods are to be exported. For example, to vary the accreditation to add or remove kinds of operations or prescribed goods or the conditions of the accreditation. Paragraph 9K.1(b) provides that the manager may apply to the Secretary to approve a variation to the accreditation so that it covers an alteration of the property (other than a minor alteration). For example, the manager of an accredited treatment facility could apply for approval for the addition or expansion of a room at the treatment facility. Paragraph 9K.1(c) and paragraph 9K.1(d) provide that the application for variation may be to vary the conditions of the accreditation or the particulars relating to the accreditation to make a minor change to a matter (including to correct a minor or technical error), respectively. A minor or technical error includes, for example, where there has been a typographical error in the name of a business or name of the manager documented on the accreditation of the property.

A note included under subsection 9K.1 provides that Division 7 sets out the requirements for applications for varying or altering the property, and that a single application may be made to make or approve a variation and renew the accreditation a property. This is intended to minimise the regulatory burden on managers.

Subsection 9K.2 provides that for paragraph 9K.1(b), a minor alteration of an accredited property is an alteration that does not or is not likely to make the property unhygienic or result in a contravention of a condition of the accreditation of the property. As a result the manager does not need to request approval of an alteration where the alteration is a minor alteration. For example:

• where upgrades are made to the administrative processes and new information technology systems are implemented on the property and in relation to the property’s business activities;
• where a manager purchased a new labelling machine to improve the efficiency and accuracy of his or her business operations; or
• where general maintenance is undertaken at the property such as repainting or rewiring of buildings.

The provision is intended to ensure managers can undertake day-to-day operations and changes to their properties without having to request approval from the Secretary, as long as the alteration does not or is not likely to make the property unhygienic or result in a contravention of a condition.

Subsection 9K.3 provides that managers must submit applications for variation or approval of an alteration at least 28 days before the proposed variation or alteration is intended to take effect. This is to ensure that the Secretary has sufficient time to consider the application and provide notice of the decision that the manager may rely on.

Subsection 9K.4 provides that if the Secretary receives an application under subsection 9K.1 to make a variation or give an approval, the Secretary must decide to approve a variation or an alteration, or refuse to make the variation or give the approval. Two notes are included under subsection 9K.4. Note 1 refers the reader to section 9ZJ which covers matters relating to dealing with applications. Note 2 provides that a decision to refuse the application is reviewable under Part 16 of the General Order.

Subsection 9K.5 provides what the Secretary must be satisfied of when making a decision on application for variation or approval of an alteration. Subsection 9K.5 provides the Secretary may have regard to any matter the Secretary considers relevant in order to be satisfied that:

• the prescribed goods produced or prepared at the property will meet relevant importing country requirements;
• the conditions of the accreditation have not been, and are not being contravened; and
• the manager has not contravened the Act or the Plants Order or the requirements of any other instrument in force under the Act that applies in relation to the accreditation or any matter covered by the accreditation.

By providing the Secretary with flexibility and discretion to consider any matter the Secretary considers relevant, subsection 9K.5 accommodates:

• the breadth of variations and alterations that may be applied for by a manager in relation to an accreditation or property;
• the variety of properties, operations, prescribed goods and markets that are regulated; and
• the variety of information that may accompany the request for variation or approval of the alteration to support the Secretary’s decision-making.

A note under subsection 9K.5 provides that under section 9M a manager may commit an offence if an alteration is made to an accredited property that has not been approved by the Secretary or the alternation is not a minor alteration within the meaning of subsection 9K.2.

Section 9L  Notice of decision

Subsection 9L.1 provides that if the Secretary makes a variation or gives an approval under paragraph 9K.4(a), the Secretary must give written notice to the manager of the property. Subsection 9L.2 provides the detail of what must be stated in the notice to the manager including the details of the variation or approval, the varied conditions (if the variation is of the conditions of the accreditation) and the date the variation or approval takes effect. A note under subsection 9L.2 provides that the varied accreditation remains in force as provided by section 9E. The primary intent of the written notice is to inform the applicant of the Secretary’s decision as well as to provide clarity about – if there is a variation of the conditions of the accreditation – the conditions that will apply to the manager’s accreditation and date from which the variation or approval takes effect. Providing this information enables the applicant to readily identify the matters covered by the accreditation and the conditions of the accreditation that must be complied with under the renewal.

Subsection 9L.3 provides that if the Secretary decides to refuse to make the variation or give the approval then the Secretary must give the applicant written notice of the decision, including reasons and a statement that the applicant may apply for reconsideration and review of the decision under Part 16 of the General Order.

Subsection 9L.4 provides that a failure to give notice of a decision as required under subsection 9L.3 does not affect the validity of the decision. The written notice provided under subsection 9L.3 ensures that a person is able to understand the reasons for the decision and is aware of his or her right to review. However, as decisions made under the Act and the Plants Order are made to give effect to the intention of the Act and the Plants Order, it is not appropriate for such decisions to be found invalid because notice was not provided to the applicant whose interests are being affected by the decision.

Section 9M  Certain alterations must not be made unless approved etc.

It is an offence under section 9M if the manager of an accredited property alters the property in circumstances where the alteration is not a minor alteration within the meaning of subsection 9K.2, and where the alteration has not been approved under 9K.4(a) (see subparagraph 9M.1(c)(i)); or has been approved under 9K.4(a) but the Secretary has not given the manager notice of the approval under subsection 9L.1 (see subparagraph 9M.1(c)(ii)). The purpose of subparagraph 9M.1(c)(ii) is to reflect the importance of the Secretary’s written notice, issued in accordance with subsection 9L.1, for providing certainty to the manager regarding the details of the variation or the approval of the alteration. The Secretary may set a later date for when the variation or approval will take effect. For example, the Secretary may approve the alteration to the property but, in order to manage the risk the alteration may pose to compliance of goods produced at the accredited property with importing country requirements, may specify in the written notice that the approval does not take effect until a specific date after the export season.

A note under subsection 9M.1 provides that the Secretary may also suspend or revoke the accreditation under paragraphs 9T.1(g) and 9Y.1(g) respectively if the manager of a property contravenes section 9M.

An offence under subsection 9M.2 is subject to a level 5 penal provision. Regulation 4 of the Regulations provides that a level 5 penal provision equates to a fine of 50 penalty units. Subsection 58.1 provides that the subsection 9M.2 penal provision has the effect, during the period of 12 months beginning on commencement day, as if the reference to “level 5 penal provision” were omitted.

Subdivision B—Variation by Secretary

Section 9N  Secretary may make variations in relation to accreditation

Section 9N provides the Secretary with the power to make variations in relation to the accreditation on his or her own initiative.

Subsection 9N.1 provides what type of variations may be made to the accreditation. The Secretary is permitted to vary:

• aspects of the accreditation so that it does not cover a kind of operations, prescribed good or place of export (see paragraph 9N.1(a)).
• the conditions of the accreditation, including imposing new conditions (see paragraph 9N.1(b)).
• set an expiry date (see paragraph 9N.1(c)) or vary the expiry date (see subparagraph 9N.1(d)(i)).
• the accreditation so that it remains in force indefinitely (see subparagraph 9N.1(d)(ii)).

However, restrictions are placed on the Secretary’s power to make certain variations. Subsection 9N.2 provides that variations to the accreditation of a property under paragraphs 9N.1(a), (b), (c), or a variation under subparagraph 9N.1(d)(i) to set an earlier expiry date may only be made if the Secretary reasonably believes that one or more of the grounds set out under subsection 9N.2 exists before taking action to vary the accreditation. This standard requires the Secretary to base his or her belief on objective circumstances. It requires more than having reasonable suspicion that the ground exists.

The grounds listed under subsection 9N.2 are that:

• prescribed goods produced or prepared at the property are not meeting, or will not meet, relevant importing country requirements.
• a condition of the accreditation has been, or is being, contravened.
• the manager of the property has contravened a requirement of the Act, the Plants Order or any other instrument in force under the Act in relation to the accreditation of the property.
• a different person has become, or is to become, the manager of the property.
• it is necessary to do so to take account of an event or circumstance notified under section 9ZD or 9ZE, or to correct a minor or technical error.

A minor or technical error includes, for example, where there has been a typographical error in the name of a business or name of the manager documented on the accreditation of the property.

Subsection 9N.3 provides that the Secretary must not make the variations under subsection 9N.2 unless the Secretary has given written notice to the manager of the property. Subsection 9N.3 is intended to place further limitations on the Secretary’s power to make variations to the accreditation of a property. The written notice to the manager must be in accordance with subsection 9N.5.

The Secretary’s ability to vary under subparagraph 9N.1(d)(i) to extend the expiry date of the accredited property and subparagraph 9N.1(d)(ii) to set a later expiry date are not limited by the provisions under subsection 9N.2 and subsection 9N.3. .

Subsection 9N.5 provides that the notice under subsection 9N.3 must specify the proposed variations, the grounds for each proposed variation and include a statement setting out the manager’s right to seek review of a decision to make the variation. Subsection 9N.5 also requires that the notice of the proposed variation include a request for the manager to give the Secretary, within 14 days after the day that the notice was given, a written statement showing cause why the proposed variation should not be made (a show cause notice).

Subsection 9N.4 provides an exception to the requirement to provide a notice of proposed variation and the show cause notice under subsection 9N.5 in circumstances where the Secretary reasonably believes the grounds for making the proposed variation are serious and urgent. Subsection 9N.4 does not limit the factors that the Secretary may take into account when determining if the grounds are serious and urgent. This is intended to be determined on a case-by-case basis. Grounds that may be reasonably believed to be serious and urgent include, for example, if the proposed variation is necessary to correct something in the accreditation that would otherwise lead to a serious breach of the conditions of the accreditation or a breach of an importing country requirement that may lead to a loss of market access. Notwithstanding that there is no requirement to give a notice before the Secretary makes the variation where the ground for variation is serious and urgent under subsection 9N.4, a decision to make the variation will remain a reviewable decision under Part 16 of the General Orders unless expressly excluded under subsection 9N.6.

A note included under subsection 9N.4 also provides that even where the ground for variation is serious and urgent, the Secretary must give notice of the variation in accordance with subsection 9P.1.

Certain decisions are not reviewable decisions

Subsection 9N.6 provides that a number of decisions by the Secretary to vary the accreditation of a property are not initial decisions that are reviewable decisions under Part 16 of the General Order. Paragraph 9N.6(a) provides that where a decision to vary a matter of the accreditation is on a ground referred to in paragraph 9N.2(e), the decision is not an initial decision for the purposes of Part 16 of the General Order. The grounds include where the manager provides notice to the Secretary of the change of circumstance or manager, under section 9ZD and 9ZE, or the variation is to correct a minor technical error. In circumstances where the manager has notified the Secretary of a change under section 9ZD or 9ZE there is no need for a manager to seek review of the Secretary’s decision to reflect the change against the accreditation of the property through a variation. This provision supports efficient regulation of accredited properties by enabling the Australian Government to take initiative to appropriately reflect these changes.

Paragraphs 9N.6(b) and (c) provide that where the decision is to set a later expiry date for the accreditation of a property or vary the accreditation of the property so that it remains in force indefinitely (see paragraph 9N.1(d)) the decision is not an initial decision for the purposes of Part 16 of the General Order. The provision was drafted to make these decisions not reviewable decisions with an understanding that a decision to vary the accreditation to set a later expiry date or making the accreditation remain in force indefinitely is seen as beneficial to the accredited property manager.

While these decisions are not reviewable, it does not remove the requirement that the manager be appropriately notified of the variation by the Secretary in accordance with:

• section 9N.5 where the Secretary proposes to make a variation in relation to an accreditation under paragraph 9N.1(a), (b) or (c); and
• section 9P where the Secretary makes any variation in relation to the accreditation of property listed under subsection 9N.1.

Section 9P  Notice of variation

Subsection 9P.1 provides that if the Secretary makes a variation under section 9N, the Secretary must give the manager of the property a written notice that sets out the information about the variation to the manager. Subsection 9P.2 provides that the notice must state the details of the variation, the varied conditions and any new conditions (if the variation is to the conditions of the accreditation), the new period of effect of the accreditation (if the variation is to the period of effect of the accreditation) and the date the variation takes effect.

Subsection 9P.3 provides that, in setting the date that the variation takes effect, if the manager was given a show cause notice under subsection 9N.5, the date that the variation takes effect must not be before the earlier of the day after any response to the request is received or the end of 14 days after the show cause notice was given. This provision makes it clear that where the manager has been given a show cause notice, the Secretary is prevented from implementing a variation until the manager has responded to the notice, or the 14 day period has lapsed.

A note included under subsection 9P.3 provides that the accreditation, as varied, remains in force as provided under section 9E.

Division 4—Suspension of accreditation

Subdivision A—Suspension requested by manager

Section 9R  Manager may request suspension

Subsection 9R.1 provides that the manager of an accredited property may request that the Secretary suspend the accreditation of a property in relation to a matter covered by the accreditation, including a kind of operations, prescribed goods or place of export. This voluntary suspension could be, for example, because the property is in the process of being sold or for other personal grounds. Subsection 9R.2 provides that the request to suspend may relate to one or more than one kind of operations, prescribed goods or, if applicable, places. This means that the request for suspension may only relate to a part of the accreditation, it does not have to relate to every matter covered by the accreditation. For example, the manager of an accredited property carrying out operations in relation to the production of apples and oranges for export may request the suspension of operations carried out only in relation to the production of apples.

Subsection 9R.3 provides that a request by the manager to suspend the accreditation must be in writing and must state the kinds of operations, prescribed goods and places in relation to which the accreditation is to be suspended and specify the reason for the suspension. This is intended to ensure the Secretary clearly and accurately understands the nature of the request for suspension.

Subsection 9R.4 provides that if the Secretary receives such a request, the Secretary must, by written notice to the manager, suspend the accreditation. If the request meets the requirements set out under subsection 9R. 3 then there is no discretion as there is no reason to refuse to accept the request for suspension. The suspension takes effect on the day specified in the notice.

Section 9S Request to revoke suspension

Subsection 9S.1 provides that following a suspension under section 9R, the manager of the property may request the Secretary to revoke the suspension.

Subsection 9S.2 provides that the request under subsection 9S.1 must be in writing, state the reason for the request for revocation of the suspension and be accompanied by any information or documents in support of the request.

Paragraph 9S.3(a) provides that if the Secretary receives a request to revoke the suspension, the Secretary may do so if the Secretary is satisfied that the reasons for the suspension no longer exist and there is no reason why the suspension should not be revoked. For example, if the accreditation of a property was suspended during the period of the sale of the property, the new manager of the accredited property may seek to revoke the suspension following settlement of the sale. The Secretary may have reasons not to revoke the suspension, for example, in circumstances where records or evidence have not been provided to demonstrate ongoing compliance during the period of suspension with relevant conditions of the accreditation, such as crop monitoring records.

Paragraph 9S.3(b) provides that where the Secretary does not revoke the suspension, the Secretary may suspend the accreditation under section 9T or revoke the accreditation under section 9Y. This may occur, for example, when the reason for the suspension is such that the integrity of the prescribed goods covered by the accreditation cannot be ensured, or the Secretary cannot be satisfied that the property is suitable to be accredited for the remainder of the export season or before the accreditation expires.

Subdivision B—Suspension by Secretary

Section 9T  Grounds for suspension by Secretary

Subsection 9T.1 provides grounds upon which the Secretary may suspend all or some of the operations, prescribed goods and, if applicable, places covered by an accreditation. The Secretary may suspend the accreditation if the Secretary reasonably believes that one or more subsection 9T.1 grounds exist. The standard requires the Secretary to base his or her belief on objective circumstances. It requires more than having a reasonable suspicion that the ground exists. Grounds for suspension are as follows:

• the integrity of the prescribed goods covered by the accreditation cannot be ensured.
• a condition of the accreditation has been, or is being, contravened.
• the manager failed to comply with a direction or request given by an authorised officer, the Secretary or auditor, or failed to provide assistance to an auditor as required under section 46.
• the manager engaged in conduct that intimidated, or hindered or prevented a person performing functions or exercising powers under the Act or the Plants Order.
• a false, misleading or incomplete statement was made in an application under Part 2A or false, misleading or incomplete information or documents were given to the Secretary or another person performing functions or exercising powers under the Act or the Plants Order.
• the manager of the property has contravened a requirement of the Act, the Plants Order or any other instrument in force under the Act in relation to the accreditation of the property.

The ability to suspend the accreditation is necessary to ensure that trading partners continue to have faith in Australia’s export supply chain and that the Australian Government is able to regulate accredited properties and the export of products in accordance with importing country requirements.

There are two notes under subsection 9T.1. Note 1 provides that a suspension must not be for more than 12 months (see section 9UA). Note 2 provides that a decision to suspend the accreditation is a reviewable decision under Part 16 of the General Order.

Subsection 9T.2 provides that the Secretary must not suspend the accreditation under subsection 9T.1 unless the Secretary has given written notice to the manager of the property in accordance with subsection 9T.4.

Subsection 9T.4 provides that the notice under subsection 9T.2 must contain information about the proposed suspension, including the matters covered by the accreditation that are proposed to be suspended and the reason for the proposed suspension, as well as a statement setting out the manager’s the right to seek reconsideration and review of the decision (as set out in subsection 9T.4). Paragraph 9T.4(c) also provides that the notice of proposed suspension must also include a request for the manager to give the Secretary, within 14 days after the day that the notice was given, a written statement showing cause why the proposed suspension should not be made (a show cause notice). If the manager responds within the 14 day period, the Secretary is required to consider the manager’s response when deciding whether to implement the suspension.

Subsection 9T.3 provides that this notice of proposed suspension and the show cause notice is not required if the Secretary reasonably believes that the grounds for the suspension are serious and urgent. Subsection 9T.3 does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent; this is intended to be decided on a case-by-case basis. For example, the grounds for suspension may be serious and urgent if:

• there was a detection of a live pest of quarantine concern to the importing country authority in or on fruit produced at an accredited property; or
• crop monitoring records cannot be produced by the manager, in contravention of a condition of the accreditation, to provide sufficient assurance that the orchard or farm is free of pests of quarantine concern or an agreed tolerance has not been exceeded during the production of the goods.

The export of prescribed goods produced and prepared containing pests of quarantine concern to an importing country could lead to widespread loss of market access or damage to Australia’s reputation as a trading partner. Subsection 9T.3 aims to ensure that prompt and appropriate regulatory action can be taken by the Australian Government to mitigate the risk to trading partners and reputational damage to Australia’s agricultural industries, particularly in circumstances where producers can pick and export their crop yield in short timeframes. The suspension of the accreditation may be made without providing notice of the proposed suspension or requesting the manager to show cause as to why it should not be made.

Irrespective of subsection 9T.3, the manager has the right to seek review of the decision to suspend the accreditation under Part 16 of the General Order. A note under subsection 9T.3 provides that even if the grounds for the suspension are serious and urgent, the manager must be informed of the suspension through a written notice in accordance with section 9U.

Section 9TA  Grounds for suspension—overdue relevant Commonwealth liability

Section 9TA provides that an overdue liability to the Commonwealth is grounds for suspending the full accreditation of property. Subsection 9TA.1 provides that the Secretary may suspend the accreditation of a property in relation to all kinds of operations and all kinds of prescribed goods if a relevant Commonwealth liability of the manager of the property or the property is more than 30 days overdue. The provision is intended to ensure timely payment of liabilities that are due and prevent further debts to the Commonwealth from being incurred.

Subsection 9TA.1 provides that the accreditation may be suspended only where:

• there is a relevant Commonwealth liability of the manager of the property or the property is more than 30 days overdue; and
• the Secretary has given a written notice about the liability to the person (the debtor) who is liable to pay a relevant Commonwealth liability; and
• the relevant liability has not been paid within 8 days or the debtor has not entered into an arrangement to pay the relevant liability within 8 days after notice about the liability is given.

Subsection 9TA.1 refers specifically to the debtor and not the manager of the property because the debt may be the responsibility of some other person but nevertheless relate to the property. The suspension of the accreditation under subsection 9TA.1 is a full suspension of the accreditation and cannot be in relation to only some of the matters covered by the accreditation. This is because the overdue liability impacts on the whole accreditation of the property and on the financial capacity of the debtor to continue meeting financial obligations.

There are two notes under subsection 9TA.1. Note 1 provides that the suspension must not be for more than 12 months (see section 9UA). Note 2 provides that the decision to suspend under section 9TA is a reviewable decision under Part 16 of the General Order.

Subsection 9TA.2 provides what the written notice of liability referred to in paragraph 9TA.1(b) must contain, including that it must state:

• a relevant Commonwealth liability is more than 30 days overdue; and
•  the Secretary may suspend the accreditation of the property if the relevant liability is not paid within 8 days or the debtor has not entered into an arrangement to pay the relevant liability within 8 days after the notice is given.
• the debtor’s right to seek review of a decision to suspend the accreditation of the property.

Subsection 9TA.3 provides that if the Secretary suspends the accreditation of a property under subsection 9TA.1, the Secretary may refuse to carry out, or direct a person (such as an authorised officer) not to carry out, specified activities in relation to the debtor under the Act until the debt has been paid. This provision is intended to assist the debtor so that they do not incur further Commonwealth liabilities under the Act and can return to participating in operations relating to the production and preparation of goods for export.

Subsection 9TA.4 provides that action by the Secretary under section 9TA does not affect the liability of the debtor to pay the relevant Commonwealth liability. This means that the debtor will still be liable to pay the overdue amount.

Section 9TB  Other grounds for suspension

Section 9TB provides that the Secretary may suspend the accreditation of a property, in situations where the Secretary receives a notice from a person in whose name the property is accredited under subsection 9ZE, or otherwise becomes aware that a person in whose name the property is accredited is no longer the manager of a property, and another person has become the manager of the property.

This discretion to suspend the full accreditation of the property on the basis of a change of manager reflects the importance placed on the manager having responsibility for the day to day operation of the property, and on providing assurance that the accredited property has met, and will continue to meet, importing country requirements and the conditions of the accreditation.

Section 9U  Notice of suspension

Section 9U provides that if the Secretary decides to suspend the accreditation under Subdivision B of Division 4 (including section 9T, 9TA and 9TB), the Secretary must give the manager a written notice of the suspension which sets out the particulars of the suspension. Subsection 9U.1 provides that the written notice must state the matters of the accreditation that are suspended, the reason for the suspension, the date the suspension is to start, the period of suspension and that the manager may apply for reconsideration and review of the decision to suspend the accreditation under Part 16 of the General Order.

Subsection 9U.2 provides that in setting the date that the suspension will start, if the Secretary has given a show cause notice under subsection 9T.2, the suspension must not start before the earlier of the day after any response to the request is received, or the end of 14 days after the show cause notice was given. This is to prevent the Secretary from taking any action to implement the proposed suspension during the period of the show cause notice.

Section 9UA  Period of suspension

Subsection 9UA.1 provides limitations on how long an accredited property can be suspended, namely to a period of no longer than 12 months. Subsection 9UA.2 provides that the Secretary may vary the period of a suspension that was imposed under Subdivision B of Division 4 by written notice. However, the total period of suspension must not be for more than 12 months. It is intended that if the reason for the suspension warrants a longer period, then the accreditation may be revoked or instead varied, provided that the relevant provisions under Subdivision B of Division 5 or Subdivision B or Division 3 respectively, are satisfied.

A note included under section 9UA provides that a decision to extend the period of suspension is reviewable decision under Part 16 of the General Order.

Section 9UB  Revocation of suspension

Subsection 9UB provides that the Secretary may revoke a suspension by written notice to the manager. The suspension does not need to remain in place for the entire period set out under a notice of suspension under section 9U or varied under subsection 9UA.2. For example, in cases where a property has been suspended by the Secretary because there has been a detection of a pest of quarantine concern to the importing country authority in fruit produced on a property located in a recognised pest free area, the Secretary may revoke the suspension of the accredited property where it is established, and the Secretary is satisfied, that there is an alternate and approved export pathway for the product, which will address the pest risk and ensure that the fruit produced at the property will continue to meet importing country requirements; such as through an approved treatment method.

Subdivision C—Other provisions

Section 9V  Effect of suspension

Section 9V provides that if the accreditation of a property is suspended wholly or in part under Subdivision A or Subdivision B of Division 4:

• the accreditation of the property remains in force while it is suspended; and
• the requirements of the Act, the Plants Order or any other instrument in force under the Act that applies in relation to the accreditation and its operations and prescribed goods (including the conditions of the accreditation) must be complied with while the accreditation is suspended.

Section 9V makes reference to any other instrument under the Act that may be in force and applies in relation to the accreditation. This will include, for example, the Fees Order, and the requirement to be audited and pay fees imposed for the audit. Section 9V means that the requirements of the accreditation continue to apply to the property and manager of the accredited property throughout the suspension. Continued compliance with these requirements during the period of suspension is intended to support the possibility of the suspension being revoked during or at the conclusion of the period of suspension. If the requirements are not complied with and suspension cannot be revoked, variation of the accreditation may be appropriate.

Section 9W  Suspended operations must not be carried out during suspension period

Section 9W provides that it is an offence if the manager of an accredited property carries out operations at an accredited property that has been suspended wholly or in part for all or specified kinds of operations, prescribed goods and, if applicable, to places to which goods may be exported. An offence under section 9W is subject to a level 5 penal provision. Regulation 4 of the Regulations provides that a level 5 penal provision equates to a fine of 50 penalty units. Section 9W is intended to operate as a disincentive for accredited property managers seeking to enter prescribed goods into the supply chain for export to overseas markets when their accreditation is suspended. This conduct could impact on the confidence of trading partners in the Australian Government’s ability to regulate the export of goods and could adversely impact on market access. The non-compliant behaviour of the manager in supplying goods produced or prepared when the accreditation was suspended could impact on the ability of an exporter to compliantly export goods under section 9 of the Plants Order.

Section 9W is not intended to prevent a manager from complying with the requirements and conditions of the accreditation during the period of suspension (in accordance with section 9V), in order to preserve the possibility that the suspension could be revoked. The provision is not intended to prevent a manager from complying with requirements to produce or prepare prescribed goods that are not subject to the suspension, for example:

• export to certain places that do not require accreditation;
• export to certain places that are covered by the accreditation and are not subject to the suspension;
• supply or sale into the domestic market for domestic consumption.

Subsection 58.1 provides that the section 9W penal provision has the effect, during the period of 12 months beginning on commencement day, as if the reference to “level 5 penal provision” were omitted.

Division 5—Revocation of accreditation

Subdivision A—Revocation requested by manager

Section 9X  Manager may request revocation

Subsection 9X.1 provides that the manager of an accredited property may request the Secretary to revoke the accreditation of a property. This revocation is to the whole accreditation and cannot apply only in relation to part of the matters covered by the accreditation. For example, the manager may request revocation if the manager no longer wishes to be engaged in the production of prescribed goods for export to any of the protocol market covered by the accreditation. The same manager could not revoke production of prescribed goods for export to only one market covered by the accreditation.

A note under subsection 9X.1 provides that if a manager does not wish to revoke the accreditation in full, the manager may apply to vary the accreditation under Subdivision A of Division 3, so that it does not include all kinds of operations, prescribed goods or, if applicable, places of export.

Subsection 9X.2 provides that a request by the manager to the Secretary to revoke the accreditation must be in writing.

Subsection 9X.3 provides that on receiving the request the Secretary must revoke the accreditation by written notice to the manager. The revocation of the property takes effect from the date specified in the written notice to the manager. Revocation by the Secretary, where requested by the manager, is mandatory because the manager cannot be forced to remain operational and produce or prepare prescribed goods for export.

Subsection 9X.4 provides an exception to subsection 9X.3, namely that the Secretary does not have to revoke the accreditation if, before the manager made the request, the manager was given a notice by the Secretary proposing to revoke the accreditation under subsection 9Y.2, and the Secretary had not decided whether to revoke the accreditation or not.

Subsection 9X.4 is intended to ensure that the Secretary considers the grounds set out under section 9Y and it prevents the manager from adopting an opt-out approach of the accredited properties scheme to avoid the consequences of non-compliance with the conditions of the accreditation or other requirements of the Act or Plants Order. For example, consideration of the grounds set out under section 9Y by the Secretary may indicate that the manager has committed an offence by contravening a condition of the accreditation, or lead to a determination by the Secretary that other action is or will be required after the accreditation has been revoked under section 9ZA.

Subdivision B—Revocation by Secretary

Section 9Y  Grounds for revocation by Secretary

Subsection 9Y.1 provides that the Secretary may revoke the accreditation of a property (including a property in relation to which a suspension is in effect under Division 4) if the Secretary reasonably believes that one or more grounds provided in subsection 9Y.1 exist. Grounds for revocation are as follows:

• the integrity of the prescribed goods covered by the accreditation cannot be ensured.
• a condition of the accreditation has been, or is being, contravened.
• the manager failed to comply with a direction or request given by an authorised officer, the Secretary or auditor, or failed to provide assistance to an auditor as required under section 46.
• the manager engaged in conduct that intimidated, or hindered or prevented a person performing functions or exercising powers under the Act or the Plants Order.
• a false, misleading or incomplete statement was made in an application under Part 2A or false, misleading or incomplete information or documents were given to the Secretary or another person performing functions or exercising powers under the Act or the Plants Order.
• the manager of the property has contravened a requirement of the Act, the Plants Order or any other instrument in force under the Act in relation to the accreditation of the property.

The grounds for revocation of the accreditation of a property mirror the grounds for suspension of the accreditation of a property under subsection 9T.1. The Secretary is required to reasonably believe that one or more grounds set out in subsection 9Y.1 exists before taking action under subsection 9Y.1. This standard requires the Secretary to base his or her belief on objective circumstances. It requires more than having a reasonable suspicion that the ground exists.

The revocation of an accreditation is of the whole accreditation and cannot be in relation to only some of the matters covered by the accreditation. This reflects the likely seriousness of the circumstances necessitating a revocation by the Secretary that cannot be dealt with by other means, such as varying or suspending the accreditation. The ability to revoke is a powerful regulatory control to ensure compliance with the requirements of the Act and the Plants Order, and the integrity of Australia’s export system.

A note under subsection 9Y.1 provides that a decision to revoke is a reviewable decision under Part 16 of the General Order.

Subsection 9Y.2 provides that the Secretary must not revoke the accreditation of a property under subsection 9Y.1 unless the Secretary has given written notice to the manager of the property in accordance with subsection 9Y.4

Subsection 9Y.4 provides that the written notice of proposed revocation must specify the grounds for the proposed revocation and include a statement setting out the manager’s right to seek review of a decision to revoke the accreditation. The written notice must also include a request for the manager to give the Secretary, within 14 days after the day that the notice was given, a written statement showing cause why the proposed revocation should not be made (a show cause notice). If the manager responds within the 14 day period, the Secretary will be required to consider the manager’s response when deciding whether to implement the revocation.

Subsection 9Y.3 provides that a notice of proposed revocation and a show cause notice under subsection 9Y.4 is not required to be given if the Secretary reasonably believes that the grounds for the revocation are serious and urgent. Subsection 9Y.3 does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent; this is intended to be decided on a case-by-case basis. For example, the grounds for revocation may be serious and urgent if the Secretary reasonably believes that the manager of a property with a full or partially suspended accreditation continued to supply prescribed goods for export to a place not covered by their accreditation and thereby operated in contravention of section 9W. The revocation of the accreditation may be made without providing notice of the proposed revocation or requesting that the manager show cause as to why it should not be made.

Irrespective of this, a decision to revoke the accreditation of a property under subsection 9Y.3 is still a reviewable decision under Part 16 of the General Order. A note under subsection 9Y.3 provides that a notice of revocation where the grounds for revoking the accreditation are serious and urgent must be provided to the manager in accordance with section 9Z.

Section 9YA  Grounds for revocation—overdue relevant Commonwealth liability

Section 9YA.1 provides an additional ground for revoking the accreditation, where the accreditation of a property has been suspended under subsection 9TA.1 because of the non-payment of a relevant Commonwealth liability.

Subsection 9YA.1 provides that the Secretary may revoke the accreditation if the accreditation is suspended under subsection 9TA.1, and within 90 days after the start of the suspension, the relevant Commonwealth liability has not been paid or the debtor has not entered into an arrangement with the Secretary to pay the relevant liability. Reference is to the debtor and not the manager under section 9YA, as the debt may be the responsibility of some other person but nevertheless relate to the property. The revocation under section 9YA is to the whole accreditation and not in relation to some of the matters covered by the accreditation. This is because the overdue liability impacts on the whole accreditation and the financial capacity of the debtor to continue to meet financial obligations under the Act.

A note under subsection 9YA.1 provides that a decision to revoke the accreditation under section 9YA.1 is a reviewable decision under Part 16 of the General Order.

Subsection 9YA.2 provides that if the Secretary revokes the accreditation of the property under subsection 9YA.1, the Secretary may refuse to carry out or direct a person not to carry out specified activities until the debt has been paid. This provision is intended to assist the debtor so they do not incur further Commonwealth liabilities under the Act. For example, the Secretary may direct an authorised officer not to undertake any compliance audits at the property, to prevent the debtor from incurring further debts to the Commonwealth.

Subsection 9YA.3 provides that action by the Secretary under section 9YA does not affect the liability of the debtor to pay the relevant Commonwealth liability. This means that the debtor will still be liable to pay the overdue amount.

Section 9YB  Other grounds for revocation

Subsection 9YB.1 provides the Secretary with the discretion to revoke the full accreditation, in situations where the Secretary receives a notice (such as a notice under section 9ZE), or otherwise becomes aware, that a person in whose name the property is accredited is no longer the manager of a property. Subsection 9YB.2 provides that the Secretary may take action to revoke the accreditation under subsection 9YB.1 irrespective of whether another person has become the manager of the property or not.

The discretion to revoke the accreditation in these circumstances reflects the importance placed on the manager having responsibility for the day to day operation of the property and for providing assurance that the accredited property has met, and will continue to meet, the condition of the accreditation.

Subsection 9YB.3 provides the Secretary with the flexibility to revoke the accreditation of a property if the property is, or becomes, a registered establishment (under Part 4 of the General Order). This allows the Secretary to streamline and simplify the regulatory frameworks governing these premises particularly in circumstances where the Secretary determines that the accreditation for the production or preparation of prescribed goods for export is no longer required for the purpose of meeting importing country requirements. The revocation of the accreditation would not impede on the ability of the manager to continue to produce and prepare prescribed goods for export because the establishment’s registration may be varied to cover the prescribed goods, operations and places of export that would otherwise be covered by the accreditation.

Section 9Z  Notice of revocation

Subsection 9Z.1 provides that if the Secretary decides to revoke the accreditation, the Secretary must give a written notice to the manager of the property stating that the accreditation of the property is to be revoked, the reasons for the revocation, the date the revocation is to take effect and that the manager may apply for reconsideration and review of the decision under Part 16 of the General Order.

Subsection 9Z.2 provides that if the manager was given a show cause notice under subsection 9Y.2, the revocation must not take effect before the earlier of the day after any response to the request is received by the Secretary, or the end of the 14 day period after the show cause notice was given. This is intended to prevent the Secretary from taking any action to implement the proposed revocation during the show cause period.

Subdivision C—Other provisions

Section 9ZA  Secretary may require action to be taken after accreditation revoked

Section 9ZA.1 provides that section 9ZA applies where a person was given notice under either subsection 9X.3 or subsection 9Z.1 or the accreditation is revoked under Subdivisions A or B of Division 5.

Subsection 9ZA.2 provides that the Secretary may, in writing, direct a person to take specified action, within a specified period after the accreditation is revoked. Subsection 9ZA.2 limits the action to that which is in relation to operations and prescribed goods that were covered by the accreditation and to action that is necessary for the purpose of achieving one or more objects of the Act or the Plants Order. For example, the Secretary may, for the purpose of protecting market access, direct the manager of the property for which the accreditation has been revoked to supply documentation or undertake tracing operations to determine the location of prescribed goods that were produced or prepared at the property and are intended for export to a place.

Subsection 9ZA.3 provides that a direction to a person under subsection 9ZA.2 must state that, if the person fails to comply with the direction, the person could commit an offence against the Regulations.

Subsection 9ZA.4 provides that a person who is given the direction must comply with the direction or they may commit an offence. An offence under section 9ZA is subject to a level 5 penal provision. Regulation 4 of the Regulations provides that a level 5 penal provision equates to a fine of 50 penalty units. The penalty under section 9ZA reflects the seriousness of failing to comply with a direction of the Secretary in relation to operations and prescribed goods that were covered by the accreditation, and is intended to act as a deterrent for non-compliant behaviour. Non-compliant conduct that contravenes a direction from the Secretary may undermine the integrity of the regulatory framework provided by the Accredited Properties Order and may adversely impact on trading partner confidence in the Australian Government’s regulation of exported prescribed goods and market access. The non-compliant behaviour of one person may impact on the ability of others to export goods in the future.

Subsection 58.1 provides that the subsection 9ZA.4 penal provision has the effect, during the period of 12 months beginning on commencement day, as if the reference to “level 5 penal provision” were omitted.

Division 6—Obligations of managers of accredited properties

Section 9ZB  Conditions of accreditation must not be contravened

Section 9ZB provides that it is the obligation of the manager of an accredited property to ensure that the conditions of accreditation are not contravened. This obligation applies both when the accreditation is not suspended and when the accreditation is suspended wholly or in part (see section 9V). It is an offence if the manager of an accredited property does not ensure that the conditions of the accreditation are not contravened. An offence under section 9ZB is subject to a level 5 penal provision. Regulation 4 of the Regulations provides that a level 5 penal provision equates to a fine of 50 penalty units.

The penalty under section 9ZB reflects the importance that managers ensure compliance with the conditions of the accreditation of the property. Non-compliant conduct that contravenes the conditions of the accreditation would undermine the integrity of the regulatory framework provided by the Accredited Properties Order and may adversely impact on trading partner confidence in the Australian Government’s regulation of exported goods. The non-compliant behaviour of one person may impact on the ability of others to export goods in the future.

Subsection 58.1 provides that the section 9ZB penal provision has the effect, during the period of 12 months beginning on commencement day, as if the reference to “level 5 penal provision” were omitted.

Section 9ZC  Additional or corrected information in relation to application for accreditation etc.

Subsection 9ZC.1 provides that if the manager of a property becomes aware that information included in application made by the manager under Part 2A, including applications for accreditation, renewal of accreditation, and variation, as well as requests for suspension and revocation, or information or a document given to the Secretary in relation to such an application, was incomplete or incorrect the manager must comply with subsection 9ZC.2.

Subsection 9ZC.2 provides that the manager of the property must, as soon as practicable, give the Secretary the additional or corrected information required under subsection 9ZC.1 to the extent that it is relevant to assessing whether:

• the requirements of this Act in relation to a matter covered by the accreditation of the property have been, are being, or will be complied with; or
• importing country requirements relating to a matter covered by the accreditation of the property have been, are being, or will be met.

It may be that a property may not have been accredited, had the Secretary been provided with the correct information when deciding whether to approve or refuse the application for accreditation. Subsection 9ZC.2 requires the manager to give the Secretary the additional or corrected information as soon as practicable.

Two notes are included under subsection 9ZC.2. Note 1 refers the reader to sections 136.1, 137.1 and 137.2 of the Criminal Code, which provide offences if a person makes a false or misleading statement in an application or provides false or misleading information or documents. Note 2 provides that the Secretary may suspend or revoke the accreditation of the property (under paragraphs 9T.1(g) and 9Y.1(g) respectively) if the manager fails to comply with subsection 9ZC.2.

It is an offence if the manager of the accredited property contravenes subsection 9ZC.2. An offence under section 9ZC is subject to a level 3 penal provision. Regulation 4 of the Regulations provides that a level 3 penal provision equates to a fine of 30 penalty units. The penal provision is intended to provide an effective deterrent to a person not providing correct or additional information, and to conduct that may impede the effective regulation of exports under the Act. It is necessary for the Secretary to have relevant and correct information to determine whether any action needs to be taken in relation to the accredited property. Conduct that contravenes this requirement would undermine the integrity of the regulatory framework provided by the Accredited Properties Order, and may adversely impact on trading partner confidence in the Australian Government’s regulation of exported goods and market access.

Subsection 58.2 provides that the subsection 9ZC.2 penal provision has the effect, during the period of 12 months beginning on commencement day, as if the reference to “level 3 penal provision” were omitted.

Section 9ZD  Notice of event or change in circumstances

Section 9ZD provides that the manager of an accredited property must notify the Secretary in writing as soon as practicable after an event or circumstance listed under section 9ZD occurs. This includes if there is a change in the manager’s business structure; the manager is an individual and the individual enters into a personal insolvency under Part X of the Bankruptcy Act 1966; if the manager is a corporation that the corporation enters into administration or is to be wound up; there is a change in the trading name, business name or contact details of the manager; a condition of the accreditation is contravened; or any other event or circumstance occur that relates to a matter covered by the accreditation.

Paragraph 9ZD(f) provides for any other event or circumstance that relates to a matter covered by the accreditation. This is intended to acknowledge the variety of matters covered by and conditions that may apply to different accreditations. For example, paragraph 9ZD(f) could include circumstances such as the detection of a notifiable pest or pest of quarantine concern to an importing country authority on the property or the detections that exceeded the tolerance level permitted.

A note under section 9ZD provides that if a person ceases to be a manager of an accredited property, the person must notify the Secretary in accordance with section 9ZE.

It is necessary for the Secretary to be notified of events or changes so that the Secretary can determine, for example, if it is appropriate to allow the accreditation of the property to continue. The notification may lead the Secretary to take certain action, such as suspension or revocation of the accreditation.

It is an offence for a manager to fail to comply with this obligation. An offence under section 9ZD is subject to a level 5 penal provision. Regulation 4 of the Regulations provides that a level 5 penal provision equates to a fine of 50 penalty units. The penal provision is intended to provide an effective deterrent to a person not providing necessary information to the Secretary and to conduct that may impede the effective regulation of exports under the Act and Plants Order. It is necessary for the Secretary to be aware of events or changes in circumstances to determine whether any action needs to be taken in relation to the accredited property. Conduct that contravenes this requirement would undermine the integrity of the regulatory framework provided by the Accredited Properties Order, and may adversely impact on trading partner confidence in the Australian Government’s regulation of exported goods and on market access.

Subsection 58.1 provides that the section 9ZD penal provision has the effect, during the period of 12 months beginning on commencement day, as if the reference to “level 5 penal provision” were omitted.

Section 9ZE  Notice of person ceasing to be manager of accredited property

Section 9ZE provides a requirement to notify the Secretary in circumstances where a person ceases to be the manager of an accredited property and establishes a penalty for failing to do so.

Section 9ZE provides that if the person in whose name a property is accredited (the former manager) ceases to be the manager, the former manager (or another person who is legally authorised to act on behalf of the former manager) must, as soon as practicable after the cessation, notify the Secretary, in writing, of that fact. Section 9ZE provides that the notice must include contact details for the person giving the notice.

By providing that a person who is legally authorised to act on behalf of the former manager must provide notice, the provision is intended to cover scenarios where the former manager is unable to provide the notification. In these circumstances, it is still necessary for the Secretary to be aware that the former manager is no longer the manager so that the Secretary may take necessary action in relation to the accreditation.

A note under section 9ZE provides that if the person in whose name a property is accredited ceases to be the manager of the property, the accreditation of the property may be suspended or revoked under section 9TB and subsection 9YB.1, respectively.

The failure to comply with this obligation is an offence. An offence under section 9ZE is subject to a level 3 penal provision. Regulation 4 of the Regulations provides that a level 3 penal provision equates to a fine of 30 penalty units. The penal provision is intended to provide an effective deterrent to a person not advising of a change in manager at the accredited property. The requirement reflects the importance placed on the manager having responsibility for the day to day operation of the property and for providing assurance that the accredited property has met, and will continue to meet, the condition of the accreditation. Conduct that contravenes this requirement would undermine the integrity of the regulatory framework provided by the Accredited Properties Order, and may adversely impact on trading partner confidence in the Government’s regulation of exported goods and market access.

Subsection 58.2 provides that the section 9ZE penal provision has the effect, during the period of 12 months beginning on commencement day, as if the reference to “level 3 penal provision” were omitted.

Division 7—Applications for accreditation etc.

Section 9ZF  Applications to which this Division applies

Division 7 of Part 2A includes a range of provisions and requirements that apply to applications made under Part 2A. This Division is intended to avoid duplication of requirements across the Accredited Properties Order and ensure matters relating to applications are dealt with consistently.

Section 9ZF provides that Division 7 applies to applications to accredit a property (made under new Division 1), to renew the accreditation of the property (made under Division 2), or to vary the accreditation of a property or so that it covers an alteration of the property (made under Subdivision A of Division 3).

Section 9ZG  Requirements for applications

Subsection 9ZG.1 provides the requirements for applications. Applications must be made in an approved manner and within a period specified, in writing, by the Secretary. An approved manner includes the ability to make an application electronically. Subsection 9ZG.1 provides that the Secretary may approve a form for making an application and if so the application must include the information and be accompanied by any documents or information required by the form. For example, the form could require that an application to accredit a property be accompanied by maps of the property that accurately capture the blocks or lots that will be accredited.

A note included under subsection 9ZG.1 provides that it is an offence to make a false or misleading statement in an application or provide false or misleading information or documents and refers the reader to sections 136.1, 137.1 and 137.2 of the Criminal Code. The sections specified in the Criminal Code are intended to provide a deterrent to persons providing false or misleading statements, information or documents, which could result in the export of goods that do not comply with the requirements or conditions set out in the Act and Plants Order.

Subsection 9ZG.2 provides that the Secretary may accept information or documents previously given to the Secretary in connection with an application under the Plants Order or the General Order, or a notice of intention to export a consignment of prescribed goods given under the Plants Order, to satisfy subsection 9ZG.1, where appropriate. For example, if the applicant has previously made an application to register their establishment and is now applying to accredit the same property, the Secretary may refer to information provided in relation to the application to register an establishment when considering the application to accredit the same property. Additionally, in circumstances where the applicant had previously made an application to accredit a property and is now applying to renew the accreditation, the Secretary may accept information presented as part of the original application for accreditation. Subsection 9ZG.2 is intended to reduce administrative burden on applicants by removing the requirement to resubmit information to the department multiple times.

Subsection 9ZG.3 provides that an application is taken not to have been made if the application does not comply with the requirements of subsection 9ZG.1 (for example, applications that are abandoned before completion). As such, incomplete applications do not need to be dealt with in the manner provided for by section 9ZJ (dealing with applications) and the Secretary is not required to make a decision on an incomplete application.

Subsection 9ZG.4 provides that the Secretary has the discretion to approve a single form or different forms for applications depending on the different kinds of properties, operations or prescribed goods.

Section 9ZH  Additional or corrected information

Subsection 9ZH.1 provides that a person who has made an application must comply with subsection 9ZH.2 if the person becomes aware that information provided in the application, or information or a document given to the Secretary in relation to the application, was incomplete or incorrect.

Subsection 9ZH.2 provides that the person must, as soon as practicable, give the Secretary the additional or corrected information to the extent that it is relevant to the Secretary’s consideration of the application. Subsection 9ZH.2 provides that the obligation is restricted to circumstances where the additional or corrected information is relevant to the Secretary’s consideration of the application.

Section 9ZH aims to ensure that the Secretary has all relevant and correct information at hand in relation to an application made under Part 2A, so that the Secretary may make an informed decision in relation to the application.

It is an offence to fail to comply with the obligation. An offence under section 9ZH is subject to a level 3 penal provision. Regulation 4 of the Regulations provides that a level 3 penal provision equates to a fine of 30 penalty units. The penal provision aims to provide a deterrent to a person not providing correct or additional information, and to conduct that may impede the effective regulation of exports under the Act. It is necessary for the Secretary to have relevant and correct information when determining whether to accredit a property or to determine whether any action needs to be taken in relation to the accredited property. Conduct that contravenes this requirement would undermine the integrity of the regulatory framework provided by the Accredited Properties Order, and may adversely impact on trading partner confidence in the Australian Government’s regulation of the export of goods and market access.

Subsection 58.2 provides that the subsection 9ZH.2 penal provision has the effect, during the period of 12 months beginning on commencement day, as if the reference to “level 3 penal provision” were omitted.

A note included under subsection 9ZH.2 provides that a person commits an offence if they make a false or misleading statement in an application or provide false or misleading information or documents and refers the reader to sections 136.1, 137.1 and 137.2 of the Criminal Code. The sections specified in the Criminal Code are intended to provide a deterrent to persons providing false or misleading statements, information or documents, which could result in the export of goods that do not comply with requirement or conditions set out in the Act and Plant Orders.

Section 9ZJ  Dealing with applications

Section 9ZJ provides what the Secretary may do for the purposes of making a decision on an application. This includes but is not limited to, requesting additional information, requesting consent to enter the premises to inspect, examine or evaluate a premises and operations carried out in relation to prescribed goods to which the application relates, and requesting a demonstration of the operations carried out in relation to the prescribed goods in the application. Many of the actions that the Secretary may take are restricted by the requirement that the Secretary must request consent before undertaking the action. For example, under paragraph 9ZJ.1(b) the Secretary must request consent to enter the premises of the applicant or of another person before doing a thing listed under paragraph 9ZJ.1(b). The Secretary must also request consent under paragraph 9ZJ.1(c) to allow a person with appropriate qualifications or expertise to assist the Secretary in doing a thing under paragraph 9ZJ.1(b).

Subsection 9ZJ.2 provides that a request under subsection 9ZJ.1 must be communicated in writing and specify the period within which the request must be complied with.

The purpose of section 9ZJ is to enable the Secretary to be satisfied in all the circumstances that it is appropriate to approve the application for accreditation. While there is no express sanction or penalty for failing to comply with the Secretary’s request under section 9ZJ, ultimately the application may be taken to be refused where the Secretary is not able to properly consider and be satisfied in order to approve an application or request.

Item 4 – Subsection 45.1

This item inserts “(in this Part called an auditor)” after “qualified person” into section 45.1 to provide that for the purposes of Part 12 of the Plants Order, which is made up of section 45, section 45A and section 46, “qualified person” and “auditor” are equivalent terms. The provision is intended to clarify the Secretary’s power to appoint an authorised officer as a qualified person to undertake audits in accordance with Part 12.

Item 5 – Before paragraph 45.1(a)

This item inserts an additional class of audit in Part 12 of the Plants Order through paragraph 45.1(aa) before paragraph 45.1(a), which allows the Secretary to require a qualified person (in this Part called an auditor) to audit operations carried out at an accredited property. The provision provides for the audit of accredited properties to assess ongoing compliance with importing country requirements, conditions of the accreditation, and the requirements of the Act and Plants Order. The power to undertake assurance and verification activities in relation to accredited properties is necessary to ensure trading partner confidence in the Australian Government’s ability to regulate the properties and Australia’s export of goods.

Item 6 – After section 45

This item inserts section 45A (Powers of auditors) into the Plants Order after section 45. This section provides additional powers to auditors (a qualified person) undertaking audits that are complementary to existing provisions under Part 12 of the Plants Order.

Section 45A provides that, for the purpose of conducting an audit under Part 12 of the Plants Order, an auditor may do anything the auditor considers necessary. The kinds of things an auditor may do when conducting an audit is provided for at subsection 45A.1. However, this does not list all the things the auditor may be able to do when conducting an audit, and does not preclude the auditor from doing similar such things as set out in section 9ZJ (in relation to dealing with applications generally) of the Plants Order. This includes being permitted to request that a person, who the auditor reasonably believes has information or documentation relevant to the audit, answer questions or provide information in writing (see paragraph 45A.1(a)). For example, an auditor may ask the approved crop monitor of an accredited property for information about crop monitoring activities undertaken at the accredited property and the results of those crop monitoring activities, to ascertain whether a condition of the accreditation has been contravened or not.

A note under subsection 45A.1 provides that a person commits an offence if the person provides false or misleading information or documents, and refers the reader to sections 137.1 and 137.2 of the Criminal Code. The penalty for contravening this provision is imprisonment for 12 months. The sections specified in the Criminal Code are intended to provide an effective deterrent to persons providing false or misleading information or documents, which could result in the export of goods that do not comply with requirement or conditions set out in the Act and Plant Orders.

Subsection 45A.2 provides that in addition to the powers set out in subsection 45A.1, an auditor may make copies, or take extracts, of documents produced under paragraph 45A.1(a), and for that purpose, may remove the document from the place where the documents are produced.

The Accredited Properties Order includes actions that may be taken if a person does not comply with a request made under section 45A. This includes, for example, that the Secretary may suspend (see paragraph 9T.1(c)) or revoke (see paragraph 9Y.1(c)) an accredited property.

Item 7 – Subsection 46.1

This item repeals subsection 46.1 and substitutes it with a new subsection 46.1. The new subsection requires managers of accredited properties, alongside occupiers of establishments and exporters, to provide such assistance required by an auditor as is reasonably necessary to enable the auditor to perform the audit of the relevant accredited property and its operations. The new subsection 46.1 ensures that the additional class of audits of operations carried out at accredited properties are accurately reflected in the Plants Order.

Item 8 – Subsection 46.2

This item omits the reference to “the occupier” in subsection 46.2 and substitutes it with “the manager, occupier”. The substitution ensures that the additional class of audits of operations carried out at accredited properties are accurately reflected in the Plants Order.

Item 9 – Part 13 (after the heading)

This item inserts a new heading “Division 1—Repeals” immediately after the Part 13—Repeal and transitional heading to create a new, first division within Part 13. Division 1 of Part 13 reflects that the contents of the first division (which includes section 49 of the Plants Order) as it relates to repeals.

Item 10 – Before section 50

This item inserts a new heading “Division 2—Transitional provisions relating to the Export Control (Plants and Plant Products) Order 2011” before section 50 of the Plants Order, to create a second division within Part 13, which reflects the contents of the new division (which includes section 50) and contains the transitional provisions relating to the Plants Order.

Item 11 – At the end of Part 13

This item inserts a new division, “Division 3—Transitional provisions relating to the Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2018” at the end of Part 13, immediately after section 50 of the Plants Order.

The Accredited Properties Order transitional provisions:

• simplify and support the implementation of the Accredited Properties Order and the effective and efficient regulation of Australia’s exports.
• mitigate adverse impacts and regulatory burdens on managers of properties who are currently an export listed property, or have applied to be, export listed properties.
• mitigate any adverse impact to Australia’s exports that would otherwise arise if managers of properties that are current export listed properties were required to apply to become accredited in the middle of export seasons, in order to continue to export goods to relevant overseas markets.

Division 3 of Part 13 includes sections 50A – 59.

Division 3—Transitional provisions relating to the Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2018

Section 50A  Dealing with applications

Section 50A provides a definition within Division 3 for commencement day which means the day the Accredited Properties Order instrument commences. The day of commencement is the day after the instrument is registered on the Federal Register of Legislation.

Section 51  Meaning of export listed property

Subsection 51.1 provides a broad definition of export listed property to be those properties listed by the department, immediately before commencement day, as meeting importing country requirements relating to one or more kinds of operations, prescribed goods, and places of export.

Subsection 51.2 expressly excludes the listing of properties that have been suspended immediately before commencement day.

The department is referred to specifically in section 51, rather than the Secretary, as existing export listed properties are administered by the department. The intention of the open wording of the definition is to ensure that the current diverse range of export listed property arrangements established through protocol agreements with trading partners to meet importing country requirements are transitioned and recognised under Part 2A.

Section 52  Properties that were export listed properties immediately before commencement day

Section 52 provides a mechanism that recognises that properties that are export listed properties before commencement day can be taken to be accredited for each kind of operations, in relation to each kind of prescribed goods and, if applicable, each place that was covered by the listing of the property, under the Part 2A of the Plants Order.

Subsection 52.3 provides that if the previous listing of the property was given subject to one or more conditions, the accreditation of the property has effect subject to those conditions.

Subsection 52.4 provides that the accreditation of the property is taken to have an expiry date, and the expiry date for the accreditation is the last day of the period of 12 months beginning on the day the previous listing of the property took effect.

Section 52 intends to prevent managers of these export listed properties from having to apply to be accredited and ensures their operations to produce or prepare goods for export can continue unimpeded. Section 52 ensures that the existing expiry dates for export listed properties continue to apply to those properties when they become accredited under Part 2A. A note under section 52.4 provides that the transition of the export listed properties to accredited properties under the Plants Order may be renewed under Division 2 of Part 2A.

Section 52 is complemented by section 59 that provides a mechanism to recognise that goods produced or prepared at an export listed property before commencement are recognised, as if the goods had been produced and prepared at an accredited property.

Section 52 and section 59 intend to resolve any possible impediment or barrier to managers supplying goods for export, and to exporters from exporting compliant prescribed goods from commencement day, and during the period immediately following, commencement.

Section 53  Applications for listing made before commencement day

Subsection 53.1 provides a mechanism to recognise that applications sent from the manager of a property to the department to list a property as an export listed property immediately before commencement day are recognised as applications for the accreditation of a property. Subsection 53.1 requires that no decision has been made on the application previously.

Subsection 53.2 provides that the application to list the property as an export listed property, is taken to be an application made to the Secretary under section 9A.1, to accredit the property for each kind of operations, prescribed goods, and if applicable, each place specified in the application.

Subsection 53.3 provides that an application is taken to be an application in relation to which Division 7 of Part 2A applies, and is taken to comply with the general requirements on applications referred to in subsection 9ZG.1.

Section 53 intends to prevent any delay in the accreditation of properties, by permitting the Secretary to consider and make decisions on an application made by the manager of a property for export listing immediately before commencement day. The export seasons for Australia’s plant industries, particularly the horticulture industry, are often time sensitive. Without this provision a manager is required to resubmit an application for accreditation to the Secretary after commencement of the Accredited Properties Order, which would otherwise lead to delayed decision making and ultimately impedes the export of goods from Australia.

Section 54  Applications to renew listing made before commencement day

Subsection 54.1 provides a mechanism to recognise that applications sent from the manager of a property to the department to renew the listing of a property as an export listed property immediately before commencement day are recognised as applications for the renewal of the accreditation of a property. Paragraphs 54.1 (b) and (c) provide that the section applies if, before the day the manager made an application to renew the listing of the property, the property was covered by the listing for one or more operations, prescribed goods and, if applicable, one or more places, and that no decision has been made on the application previously.

Subsection 54.2 provides that the application to renew the listing of the property as an export listed property is taken to be an application made to the Secretary under subsection 9F.2 to renew the accreditation of the property for each kind of operations, prescribed goods, and if applicable, each place specified in the application.

A note under subsection 54.2 provides that the property to which the application for renewal applies is taken to be an accredited property under subsection 52.2.

Subsection 54.3 provides that an application is taken to be an application in relation to which Division 7 of Part 2A applies, and is taken to comply with the general requirements on applications referred to in subsection 9ZG.1.

Section 54 is intended to prevent any delay in the accreditation of properties, by permitting the Secretary to consider and make a decision on an application by the manager of a property for renewal of a property’s export listing. The export seasons for Australia’s plant industries, particularly the horticulture industry, are often time sensitive. Without this provision a manager is required to resubmit an application for renewal of the accreditation of a property to the Secretary after commencement of the Accredited Properties Order, which would otherwise lead to delayed decision making and ultimately impede the export of goods from Australia.

Section 55  Applications to vary listing made before commencement day

Subsection 55.1 provides a mechanism to recognise that applications sent by a manager to the department immediately before commencement day to vary matters or conditions of an export listed property or seek approval for an alteration of the property are applications to the Secretary for variation of the accreditation of a property or approval of an alteration of a property. Subsection 55.1 provides that the section applies in relation a property if, immediately before commencement day, the property was an export listed property, and an application of a kind described under paragraph 55.1(b) had been made to the department and no decision has been made on the application previously.

Subsection 55.2 provides that the application is taken to be an application made to the Secretary under subsection 9K.1 to vary the accreditation of the property as specified in the application.

A note under subsection 55.2 provides that the property to which the application for variation applies is taken to be an accredited property under subsection 52.2.

Subsection 55.3 provides that an application will be taken to be an application in relation to which Division 7 of Part 2A applies, and will be taken to comply with the general requirements on applications referred to in subsection 9ZG.1.

Section 55 is intended to minimise the burden on industry and any impediment to the Secretary’s decision making on the application, which would otherwise arise if the manager of the export listed property were required to submit any additional applications in relation to the matters following commencement of the legislation. Any delay to this decision making could undermine the integrity of the regulatory framework provided by the Accredited Properties Order, and adversely impact on trading partner confidence in the Australian Government’s regulation of exported goods and market access.

Section 56  Request to suspend listing made before commencement day

Subsection 56.1 provides a mechanism to recognise a request sent by a manager to the department immediately before commencement day to suspend the listing of an export listed property in whole or in part, to be a request to the Secretary. Subsection 56.1 provides that the section applies in relation to a property if, immediately before commencement day, the property was an export listed property, and before commencement day the manager had submitted, in writing, a request to suspend the listing of the property in relation to one or more operations, prescribed goods, and, if applicable, places of export, and no decision has been made on the request previously.

Subsection 56.2 provides that the request is taken to be an application made to the Secretary under subsection 9R.1, to suspend the accreditation of the property for each kind of operations, prescribed goods, and if applicable, each place specified in the application.

A note under subsection 56.2 provides that the property to which the request for suspension applies is taken to be an accredited property under subsection 52.2.

Section 56 is intended to minimise the burden on industry and any impediment to the Secretary’s decision making on the application, which could otherwise arise if the manager of the export listed property were required to submit any additional request for suspension following commencement of the legislation. Any delay to this decision making could undermine the integrity of the regulatory framework provided by the Accredited Properties Order, and adversely impact on trading partner confidence in the Australian Government’s regulation of exported goods and market access.

Section 57  Request to revoke listing made before commencement day

Subsection 57.1 provides a mechanism to recognise a request sent by a manager to the department immediately before commencement day to revoke the listing of an export listed property, to be a request to the Secretary. Subsection 57.1 provides that the section applies in relation to a property if, immediately before commencement day, the property was an export listed property, and before commencement day the manager had submitted, in writing, a request to revoke the listing of the property, and the request had not been dealt with before commencement day.

Subsection 57.2 provides that the request is taken to be an application made to the Secretary under subsection 9X.1, to suspend the accreditation of the property for each kind of operations, prescribed goods, and if applicable, each place specified in the application.

A note under subsection 57.2 provides that the property to which the request for revocation applies is taken to be an accredited property under subsection 52.2.

Section 57 is intended to minimise the burden on industry and any impediment to the Secretary’s decision making on the application, which could otherwise arise if the manager of the export listed property were required to submit any additional request for revocation following commencement of the legislation. Any delay to this decision making could undermine the integrity of the regulatory framework provided by the Accredited Properties Order, and adversely impact on trading partner confidence in the Australian Government’s regulation of exported goods and market access.

Section 58  Penal provisions

Subsection 58.1 provides that the penal provisions listed at subsection 58.1 have effect during the period of 12 months beginning on commencement day, as if the reference to “level 5 penal provision” were omitted. The penal provisions are:

• subsection 9M.2;
• section 9W;
• subsection 9ZA.4;
• section 9ZB; and
• section 9ZD.

Subsection 58.2 provides that the penal provisions listed at subsection 58.2 have effect during the period of 12 months beginning on commencement day, as if the reference to “level 3 penal provision” were omitted. The penal provisions are:

• subsection 9ZC.2;
• section 9ZE; and
• subsection 9ZH.2.

The purpose of section 58 is to provide a transparent 12 month ‘soft start’ for persons from criminal penalty, including managers of accredited properties, as they adjust and transition to complying with the legislative obligations set out in Part 2A. While the obligations exist from the commencement day, a failure to comply will not be subject to penalty under regulation 4 of the Regulations for the first 12 months beginning on the commencement day.

Section 58 does not prevent the Secretary from imposing administrative sanctions by varying, suspending or revoking an accreditation of the property where the Secretary reasonably believes that one or more relevant grounds have been met under Divisions 3, 4 and 5 respectively.

Section 58 does not prevent a person from being found to have committed an offence under other provisions of the Act, other provisions of the Plants Order or relevant Export Control Orders, or the Criminal Code.

Section 59  Prescribed goods produced or prepared before commencement day and exported on or after that day

Section 59 provides a mechanism to recognise that prescribed goods that are produced or prepared at an export listed property before commencement day will be recognised as if the prescribed goods had been produced and prepared at an accredited property and comply with the subsection 9.1A condition for export. Section 59 is intended to prevent managers of these export listed properties from having to apply to be accredited under the legislation and ensures that the prescribed goods they produce and prepare for export under their listing can be exported compliantly. The consignment of prescribed goods meets the section 9.1A requirement as long as, immediately prior to commencement day, the export listing of the property covered the production or preparation of those prescribed goods to the relevant overseas market.

Section 59 is complemented by section 52, which provides a mechanism to recognise that properties that are export listed properties before commencement can be taken to be accredited under the Part 2A of the Plants Order.

Section 52 and section 59 intend to resolve any impediments or barriers to managers supplying prescribed goods for export, and exporters from exporting compliant prescribed goods in the period immediately following commencement of the Accredited Properties Order.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Export Control (Plant and Plant Products) Amendment (Accredited Properties) Order 2018

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2018 (the Accredited Properties Order) inserts a set of provisions for the accreditation of properties into the Export Control (Plants and Plant Products) Order 2011 (the Plants Order). The purpose of the Accredited Properties Order is to improve the management of plant exports by strengthening the regulation of properties that produce or prepare certain goods for export to certain importing countries, where it is necessary to meet importing country requirements. In achieving this purpose, the Accredited Properties Order promotes the right to work and the right to an adequate standard of living including the right to adequate food, as provided under the International Covenant on Economic, Social and Cultural Rights (the ICESCR).

For the export of a number of horticultural products, Australia has market access on the basis of protocol agreements that have been bilaterally negotiated and endorsed by the Department of Agriculture and Water Resources (department), as the Australian National Plant Protection Organisation (NPPO), and the counterpart NPPO of the importing country. These importing countries are known as ‘protocol markets’. Protocol agreements set out obligations of Australian primary producers, exporters and the department for ensuring that horticulture exports will meet the ‘phytosanitary’ (plant health) import requirements of protocol markets; primarily that such products are free from specific pests of concern to the importing country and traceable across the export supply chain.

The department has entered into a growing number of protocols in recent years, reflecting increased demand by importing countries and their consumers for assurance that goods proposed for export are traceable in order to verify product security and integrity across the supply chain.

Within the agricultural export legislative framework under the Export Control Act 1982 (the Act), accredited properties were previously only available for the production and preparation of meat and meat products derived from cattle for export to European Union member states, under Part 4 of Schedule 7 of the Export Control (Meat and Meat Products) Orders 2005 (the Meat Orders). The Meat Orders accredited property provisions provided a model for the Accredited Properties Order. The Accredited Properties Order improves and strengthens existing, departmentally administered export listed property arrangements by providing for clearer, more robust powers and obligations for both the department and industry.

Accredited properties are separate to, but work in conjunction with, registered establishments to regulate the plant and plant product export supply chain, ensuring clear government oversight from the point of production and preparation through to the export of relevant plants and plant products from Australia. Requiring managers who produce or prepare goods for export to register their properties as registered establishments, and be subject to fit and proper person assessments and annual registration charge requirements would prohibit these individuals and businesses from participating in the production or preparation of goods for export to these markets. The cost and the level of regulation that registered establishments are subject to would be inconsistent and disproportionate when considered in light of the purpose of export listed property arrangements. Instead of requiring export listed properties to pay annual charges to register their properties as registered establishments, the Accredited Properties Order allows managers of farms, vineyards and orchards, and managers of packhouses to use existing phytosanitary security and traceability systems, established under export listed property arrangements, to demonstrate compliance with protocol requirements.

As a result, the Accredited Properties Order is expected to have little or no impact on the current operations of managers of farms, vineyards and orchards, and managers of packhouses for producing and preparing plants and plant products for export to protocol markets. The key changes from existing export listed properties administered policy arising from the Accredited Properties Order are:

• administrative consequences, including suspension and revocation, as well as penalties for non-compliance with legislation;
• capturing importing country requirements and additional requirements as conditions for the accreditation of properties; and
• prescribed mechanisms to ensure greater rigour and procedural fairness in government decision-making.

For example, the amendments require decisions under Part 2A of the Plants Order to be accompanied by written notices of decisions setting out its particulars and (if relevant) reasons, and enable aggrieved managers of properties to seek reconsideration and review of such decisions.

Human rights implications

The Accredited Properties Order engages, or has the potential to engage, the following rights and freedoms:

• Article 11(1) of the ICESCR – Right to an adequate standard of living, including food, water and housing.
• Article 14 of the International Covenant on Civil and Political Rights (ICCPR) – Criminal process rights, including the right to the presumption of innocence and the right to be free from self-incrimination.
• Article 17 of the ICCPR – Right to protection from arbitrary interference with privacy.

Assessment of compatibility with human rights

Right to an adequate standard of living, including food, water and housing (Article 11(1) of the ICESCR)

Article 11(1) of the ICESCR protects the right to an adequate standard of living, including food, water and housing. To protect this right, government has an obligation to ensure the availability and accessibility of resources necessary for the realisation of this right.

In its General Comment No 12 (May 1999), the UNCESCR noted that “the core content of the right to adequate food implies the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture”. The UNSESCR also noted that “free from adverse substances” sets requirements for food safety, and for a range of protective measures by both public and private means, to prevent contamination of foodstuffs through contamination and/or through bad environmental hygiene or inappropriate handling at different stages throughout the food supply chain.

The Accredited Properties Order promotes the right to adequate food by enabling trade in plant products, such as fresh fruit and vegetables, from Australia to other countries, particularly in those products defined as being prescribed goods under the Act and Plants Order. The Accredited Properties Order also assists other countries to provide additional food to their populations and provides them with prescribed goods, such as certain fresh fruits and vegetables that may otherwise not be available domestically.

The Accredited Properties Order contains the accredited properties regulatory tool that is designed to ensure that, where the Secretary determines it is necessary, prescribed goods produced and prepared at properties comply with importing country requirements, and are monitored and traceable throughout the export supply chain. Persons wanting to export goods from Australia to these specific markets are required to comply with this requirement and the Accredited Properties Order provides for an appropriate audit regime to ensure that the requirements are being met.

Summary

The Legislative Instrument is compatible with the right to an adequate standard of living, including food, water and housing, under Article 11(1) of the ICESCR, because it positively engages and promotes that right.

Right to presumption of innocence (Article 14(2) of the ICCPR)

Article 14 of the ICCPR provides for the presumption of innocence and sets out minimum guarantees in criminal proceedings, including, at paragraph 3(e), that a person charged with a criminal offence shall have the right to examine, or have examined, the witnesses against him or her, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The right to presumption of innocence is also a fundamental common law principle in Australia.

Section 5.6 of the Criminal Code creates a rebuttable presumption that, to establish guilt, fault must be proven for each physical element of a Commonwealth offence. If it is proposed that no fault element apply to the offence or an element of the offence, the offence or element must be expressly identified as one of strict liability (section 6.1 of the Criminal Code) or absolute liability (section 6.2 of the Criminal Code).

When strict liability applies to an offence or an element of an offence, the prosecution is only required to prove the physical elements of the offence (or element of the offence) in order for the defendant to be found guilty. That is, they are not required to prove fault elements in order for the defendant to be found guilty.

Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations. Strict liability offences can be considered a limitation of the presumption of innocence because the defendant can be found guilty without the prosecution being required to prove fault. It is important to note that the defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code).

However, strict liability offences are not necessarily inconsistent with the presumption of innocence, provided that the removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective.

The strict liability offences in the Accredited Properties Order have been developed in line with the Guide to Framing Commonwealth Offences (Guide). The Guide states that applying strict liability to all elements of an offence is generally only considered appropriate where all of the following apply:

• the offence is not punishable by imprisonment;
• the offence is punishable by a fine of up to 60 penalty units for an individual and 300 penalty units for a body corporate;
• the punishment of offences not involving fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring certain conduct;
• there are legitimate grounds for penalising persons lacking fault (for example, because he or she will be placed on notice to guard against the possibility of any contravention).

Regulation 4(2) of the Export Control (Orders) Regulation 1982 (Regulations) states that where a person fails to comply with an order, or a provision of the order (including this Accredited Properties Order) and the provision is a penal provision, the offence is an offence of strict liability. All penal provisions established under the Accredited Properties Order specify that the penal provisions are level 5 penal provisions. Regulation 4(1)(b) of the Regulations makes clear that a level 5 penal provision sets the penalty units for the provision at 50 penalty units. It is also important to note that, as a result of the operation of the Regulations and Crimes Act 1914, the strict liability offences of the provisions of the Accredited Properties Order involve a pecuniary penalty only and are not punishable by imprisonment.

The strict liability offences in the Accredited Properties Order are appropriate because persons voluntarily seek to accredit their properties and comply with conditions and importing country requirements to produce and prepare goods for export to certain overseas markets. As a result they should know their legal obligations before applying to become accredited and undertaking operations.

Due to the operation of regulation 4 of the Regulation, the only penal provisions that can be included for non-compliance with the Accredited Properties Order are offences of strict liability. While a range of administrative sanctions, including the power of the Secretary to suspend, revoke and vary the accreditation, provide a level of deterrence, without penal provisions, the Accredited Properties Order would lack effective deterrents for non-compliance with obligations and undermine the integrity of the regulatory framework provided by the Accredited Properties Order. Compliance with the requirements of the Accredited Properties Order is necessary to ensure the Government can effectively regulate exports under the Act, maintain trading partner confidence in the Government’s regulation of exported goods, and ensure that Australia’s market access is not adversely impacted.

Making these offences strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability. The Accredited Properties Order includes a range of transitional provisions under Division 3 of Part 13 that have the operation of ensuring that properties operating under administrative ‘export listed property’ arrangements immediately prior to commencement are recognised as accredited properties under the Accredited Properties Order. Section 58 of the Accredited Properties Order is included to acknowledge that for a period of 12 months from commencement day, leniency from criminal penalties is warranted for non-compliance with subsection 9M.2, section 9W, subsection 9ZA.4, section 9ZB, subsection 9ZC.2, section 9ZD, section 9ZE and subsection 9ZH.2. Section 58 has the effect of omitting reference to “level 5 penal provision” and provides managers of accredited properties time to adjust to the new strict liability offences for 12 months from commencement day.

Summary

The Legislative Instrument is compatible with the right to the presumption of innocence in Article 14(2) of the ICCPR because, to the extent that it may limit that right, that limitation is reasonable, necessary and proportionate to the achievement of a legitimate objective.

Right to be free from self-incrimination (Article 14(3) of the ICCPR)

Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-incrimination in the determination of a criminal charge by providing that a person may not be compelled to testify against him or herself, or confess guilt. The common law of Australia also recognises the privilege against self-incrimination, which applies unless expressly or impliedly overridden by statute. The privilege against self-incrimination may be subject to permissible limits. Any limitations must be for a legitimate objective and be reasonable, necessary and proportionate to that objective.

The Accredited Properties Order limits the right to be free from self-incrimination by expressly removing the privilege against self-incrimination in the following information gathering sections of the Accredited Properties Order:

• Section 9ZC (additional or corrected information in relation to application for accreditation etc.);
• Section 9ZH (additional or corrected information);
• Section 9ZJ (requirement to give the Secretary information or documents relevant to the application or the applicant);
• Section 45A (requirement to give an auditor information or documents relevant to the audit on request).

Australia’s agricultural export industries are based on trust. Removing the privilege against self-incrimination in these circumstances is necessary to achieve the legitimate objective of ensuring that goods that are exported meet the requirements of the Act, relevant subordinate legislation and importing country requirements. Abrogating the privilege against self-incrimination in these provisions ensures that the Secretary has all the relevant information in relation to a person’s operations or prescribed goods that are being produced or prepared for export, and that the information is correct. The Secretary relies on the information provided to be complete and accurate in order to effectively assess applications and determine compliance with the Act and Plants Order, and importing country requirements.

Upholding the privilege against self-incrimination in relation to individuals who have information regarding a potential breach of the requirements imposed under the Act, Plants Order or of importing country requirements could have significant consequences. For example, goods that are produced or prepared in contravention with importing country requirements, and are exported, have the potential to cause significant long-term damage to Australian industries as well as to the reputation of Australia as a reliable producer of quality goods. If one person does not comply with their obligations under the Act and Plants Order, and the goods they export are rejected by the importing country, this may compromise export activities to that market. The actions of one person may affect all other exporting participants.

It is not feasible to obtain information by other means (for example, warrants) in these circumstances, due to the volume of goods exported from Australian territory and the growth in the number of importing country requirements requiring that the Secretary to mandate the accreditation of properties for the production and preparation of goods. Without the proposed abrogation of the privilege against self-incrimination, the Australian Government’s ability to manage risks associated with the production, preparation or export of goods for which it is actively considering an application, through a responsive, evidence-led approach would otherwise be significantly reduced. Removal of the privilege against self-incrimination ensures that the assessment of risk and application of response measures can occur as urgently as necessary, and reflects the magnitude of the potential impact posed to Australian trade should accurate information and documentation not be provided.

Finally, the usual criminal process rights and minimum guarantees that apply in criminal proceedings applies to any criminal proceedings under the Act and Plants Order, including the right to a fair public hearing and appeal rights to a higher court. Accordingly, the provisions are compatible with the criminal process rights in Article 14 of the ICCPR.

Summary

The Legislative Instrument is compatible with the right to be free from self-incrimination under Article 14(3)(g) of the ICCPR because, to the extent that it may limit that right, that limitation is reasonable, necessary and proportionate to the achievement of a legitimate objective.

Right to protection from arbitrary interference with privacy (Article 17 of the ICCPR)

Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence, and protects a person’s honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR, and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. While the United Nations Human Rights Committee has not defined “privacy”, the term is generally understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

Provision of information

The Accredited Properties Order:

• requires a person to provide information in an application or request (sections 9A, 9F, 9K, 9R, and 9X).
• requires a person to provide additional or corrected information in relation to their application (sections 9ZC and 9ZH).
• gives the Secretary the power to require information or documents (paragraph 9ZJ.1(a)).
• gives an auditor the power to request a person who the auditor reasonably believes has information or documents that are relevant to an audit to answer questions, provide information in writing or produce documents (paragraph 45A.1(a)).

By requiring persons to provide information or documents, the Accredited Properties Order may incidentally require the provision of personal information. The collection, use, storage and sharing of personal information may therefore operate to limit the right to privacy.

These provisions are necessary for the legitimate objective of assessing the suitability of a person to participate in operations in relation to the production and preparation of good for export from Australia. The Secretary needs access to this information in order to properly assess whether someone’s property should be accredited. They also need ongoing and up-to-date information once a property has been accredited, to ensure the manager is still complying with the Act, the Plants Order, and importing country requirements.

The person who provides information in an application ‘opts in’ to the Accredited Properties regulatory framework and export regulation system. Guidance from the Parliamentary Joint Committee on Human Rights indicates that whether a person has a reasonable expectation of privacy in the circumstances is relevant to the issue of determining whether or not a provision is permissible. A person who has opted into the Accredited Properties regulatory framework should expect that a certain amount of personal information about the way their business operates will need to be provided to the Secretary in order to gain the benefits of the framework.

The interference with privacy is not arbitrary in these circumstances because the form and required information is approved by the Secretary, and transparently provided for managers of properties in advance of the submission of their application through departmental instructional material. The information a person needs to provide will be information about their business and how their operations will comply with the specific importing country requirements of the markets to which they are seeking to supply goods for export. For example, a person may need to provide maps of the property that they wish to accredit. A person who has opted into the regulatory system should be aware that they will have to provide this kind of information when they voluntarily decide to become involved in an export-related business.

Paragraph 45.1(aa) provides that the Secretary may require an audit to be conducted of the operations carried out at an accredited property or covered by the accreditation. Section 45A of the Accredited Properties Order provides a list of powers of auditors. Auditors may request a person to produce documents, records or things, or answer questions or provide information in writing; take samples of goods; and test or analyse samples of goods.

To ensure that the provisions of the Accredited Properties Order are a proportionate and legitimate restriction of an individual’s privacy, these requirements only apply for the purposes of determining whether a person is complying with the Act, the Plants Order or other instrument, or importing country requirements.

The interference with privacy is not arbitrary in these circumstances because the powers of an auditor and how an audit should be conducted are specified in the Accredited Properties Order and operate by requesting the consent of the person whose operations are being audited. The auditor is required to follow the legal and policy requirements when carrying out an audit, including showing the relevant person their identity card so it is clear to the relevant person they have the authority to conduct an audit.

Australia’s agricultural export industries are industries underpinned by trust. Importing country requirements relating to goods will often relate to the preservation of public health or biosecurity. Non-compliance with those requirements, and with the requirements of the Act and Plants Order more generally, represent a risk to Australia’s participation in those markets, as the non-compliance may have significant adverse biosecurity consequences elsewhere. Non-compliance may also impact the confidence of trading partners in the Australian Government’s regulation of exported goods and adversely impact market access. The consequences of non-compliant behaviour by one person may therefore impact the ability of others to export goods.

Summary

The Legislative Instrument is compatible with the right to protection from arbitrary interference with privacy under Article 17 of the ICCPR because, to the extent that it may limit that right, that limitation is reasonable, necessary and proportionate to the achievement of a legitimate objective.

Conclusion

The Legislative Instrument is compatible with human rights because it promotes the protection of human rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

The Hon. David Littleproud MP

Minister for Agriculture and Water Resources