EXPLANATORY STATEMENT
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Export Control (Orders) Regulations 1982
Export Control (Plants and Plant Products) Amendment Orders 2006 (No. 2)
Section 3 of the Export Control Act 1982 (the Act) defines ‘prescribed goods’ to mean goods, or goods included in a class of goods, that are declared by the regulations to be prescribed goods for the purposes of the Act. Section 7 of the Act provides that the regulations may prohibit the export of prescribed goods from Australia absolutely or to a specified place or unless specified conditions or restrictions are complied with or to a specified place unless conditions or restrictions are complied with.
Subsection 25(1) of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for carrying out or for giving effect to the Act. The matters that the regulations may make provision for include empowering the Minister to make orders, not inconsistent with the regulations, with respect to any matter for or in relation to which provision may be made by the regulations.
Regulation 3 of the Export Control (Orders) Regulations 1982 provides that the Minister may, by instrument in writing, make orders, not inconsistent with regulations made under the Act, with respect to any matter for or in relation to which provision may be made by regulations made under the Act.
The Export Control (Plants and Plant Products) Orders 2005 (the Principal Orders) regulate the export of plant and plant products.
The purpose of the Export Control (Plants and Plant Products) Amendment Orders 2006 (No. 2) is to amend the Principal Orders in response to concerns from the Standing Committee on Regulations and Ordinances (the SCRO). In particular, the amendments to the Principal Orders:
- clarify the meaning of the words ‘adequate’ and ‘accurate’ referred to in suborder 10.1 in the context of a trade description; and
- remove the word ‘substantially’ from the phrase ‘complies substantially with relevant State, Territory and Commonwealth occupational health and safety requirements’ in Schedule 2, subparagraph 8.1(c)(i).
No consultation has occurred as the amendments are of a minor or machinery nature and do not substantially alter existing arrangements.
The Export Control (Plants and Plant Products) Amendment Orders 2006
(No. 2) are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the Amendment Orders are set out below:
Order 1
1. This order provides that the name of these amending Orders is the Export Control (Plants and Plant Products) Amendment Orders 2006 (No. 2).
Order 2
2. This order provides that these Orders commence on the day after they are registered on the Federal Register of Legislative Instruments.
Order 3
3. This order provides that Schedule 1 amends the Export Control (Plants and Plant Products) Orders 2005.
Schedule 1 Amendments
Item 1 inserts new suborders 10.1A and 10.1B to clarify the meaning of the words ‘adequate’ and ‘accurate’ referred to in suborder 10.1. Suborder 10.1 prohibits the export of prescribed goods to which a trade description is applied unless the trade description is adequate and accurate. The SCRO has expressed a concern that “adequate and accurate” appears to be a vague criterion. The new suborders have been inserted in response to this concern.
New suborder 10.1A expands on the meaning of the word ‘adequate’ by specifying that a trade description is ‘adequate’ if it contains sufficient information to enable the goods to be readily identified, is not ambiguous or unclear and satisfies any particular requirements under the Principal Orders. An example of a particular requirement relating to a trade description under the Principal Orders is found in suborder 10.2. Suborder 10.2 sets out particular requirements for the trade description for certain horticulture produce. New suborder 10.1B expands on the meaning of the word ‘accurate’ by stating that a trade description is accurate if it correctly describes the goods.
Item 2 omits the word ‘substantially’ from Schedule 2, subparagraph 8.1( c)(i) which requires that a sampling room complies ‘substantially’ with the relevant State, Territory and Commonwealth occupational health and safety requirements. The SCRO has queried why only ‘substantial’ compliance is required and suggested that disputes may arise as to whether compliance is ‘substantial’. In response to the SCRO concerns this word has been deleted.
Overview
The Export Control (Plants and Plant Products) Amendment Orders 2006 (No. 2) were introduced to address specific concerns raised by the Standing Committee on Regulations and Ordinances (SCRO) regarding the Export Control (Plants and Plant Products) Orders 2005. Enacted by the Governor-General under the authority of the Export Control Act 1982, these amendment orders aim to provide clarity and precision to certain terms and requirements within the existing regulations. Specifically, the amendments aim to clarify the meaning of 'adequate' and 'accurate' in the context of trade descriptions and remove the requirement for 'substantial' compliance with occupational health and safety standards. The legislative instrument was deemed to be of a minor or machinery nature, and as such, no formal consultation was conducted. Instead, the amendments were introduced to streamline the regulatory framework and ensure consistency in the application of the regulations.
Scope and Application
The Export Control (Plants and Plant Products) Amendment Orders 2006 (No. 2) amend the Export Control (Plants and Plant Products) Orders 2005, applying to individuals, businesses, and entities involved in the export of plant and plant products from Australia. These Orders are designed to refine the criteria for trade descriptions and the compliance standards for occupational health and safety in sampling rooms. They operate within the framework of the Export Control Act 1982, which governs the export of prescribed goods from Australia. These Orders, as subordinate legislation, extend the jurisdictional reach of the Act by specifying particular requirements and clarifications under the regulatory scheme. Notably, they do not introduce new exclusions or exemptions but rather provide clarity to existing provisions. The amendments are effective from the date of their registration on the Federal Register of Legislative Instruments, thereby ensuring timely application and compliance with the updated standards.
Key Provisions
The Export Control (Plants and Plant Products) Amendment Orders 2006 (No. 2) primarily focus on refining the definitions and requirements for the export of plants and plant products from Australia. These amendments are made in response to feedback from the Standing Committee on Regulations and Ordinances (SCRO). Section 3 of the Export Control Act 1982 defines 'prescribed goods', which are subject to export controls under the Act. Section 7 of the Act allows for the prohibition of the export of these goods under certain conditions. The regulations under this Act, particularly the Export Control (Plants and Plant Products) Orders 2005, have been amended to clarify specific criteria and requirements for exports.
The operative sections of the Export Control (Plants and Plant Products) Amendment Orders 2006 (No. 2) include clarifications of terms such as 'adequate' and 'accurate' in relation to trade descriptions (see Schedule 1, Items 1 and 2). These amendments aim to ensure that exporters provide clear and precise information about the goods they intend to export, thereby addressing the SCRO's concerns about the vagueness of these terms. Additionally, the amendments remove the term 'substantially' from the compliance requirement for occupational health and safety standards in sampling rooms (Schedule 2, subparagraph 8.1(c)(i)). This change seeks to eliminate ambiguity regarding the level of compliance needed, potentially reducing disputes over what constitutes 'substantial' compliance.
The obligations and requirements imposed by these amendments are primarily directed at exporters of plants and plant products. Exporters must ensure that any trade descriptions they apply to prescribed goods are both adequate and accurate, as defined in the new suborders 10.1A and 10.1B. This means that descriptions must contain sufficient information to identify the goods, must be clear and unambiguous, and must meet any specific requirements outlined in the regulations. Furthermore, any sampling rooms used in the export process must fully comply with relevant occupational health and safety standards, without the need to merely 'substantially' adhere to these standards.
The consequences for non-compliance with these amendments are not explicitly stated in the Export Control (Plants and Plant Products) Amendment Orders 2006 (No. 2). However, under the Export Control Act 1982, non-compliance with regulations can lead to civil or criminal penalties. For instance, Section 17 of the Act provides for fines and imprisonment for breaches related to the export of prescribed goods. While the specific penalties for the amendments are not detailed in these Orders, it is reasonable to infer that non-compliance with the clarified requirements for trade descriptions and occupational health and safety standards could result in similar enforcement actions under the overarching Act.