EXPLANATORY STATEMENT
Issued by Authority of the Minister for Agriculture and Water Resources
Export Control Act 1982 and Export Control (Orders) Regulations 1982
Export Control (Plants and Plant Products) Amendment (Registered Establishments) Order 2015
Legislative Authority
Section 25 of the Export Control Act 1982 (the Act) relevantly provides that the Governor‑General may make regulations empowering the Minister to make orders, not inconsistent with the regulations. Regulation 3 of the Export Control (Orders) Regulations 1982 provides that the Minister may, by instrument in writing, make orders, not inconsistent with regulations made under the Act, with respect to any matter for or in relation to which provision may be made by regulations under the Act.
Purpose
The purpose of the Export Control (Plants and Plant Products) Amendment (Registered Establishments) Order 2015 (the Amendment Order) is to amend the Export Control (Plants and Plant Products Order 2011 (the Order). The Amendment Order provides for a scheme that allows the Secretary to determine if a registered establishment is a small horticultural products registered establishment for a financial year. In circumstances where the Secretary determines the registered establishment is a small horticultural products registered establishment for a financial year, the charge payable in relation to the registered establishment for the financial year, under the Export Charges (Imposition—General) Regulation 2015 or the Export Charges (Imposition—Customs) Regulation 2015 is less than it would be if such a determination has not been made.
The Amendment Order gives effect to the new export services cost recovery fees developed as part of the Department of Agriculture and Water Resources’ (the department) redesign of cost recovery arrangements.
Background
The export of plants and plant products are managed under the Act and relevant delegated legislation. The legislation provides the legal basis for the regulation of exports and the conditions that must be met to export certain goods from Australia. It also provides authority for the department to carry out inspections and certification activities (supported by audit and verification) along the export supply chain to ensure those conditions are met. These activities enable the department to provide assurance of the integrity of our agricultural exports to overseas countries which helps in maintaining and expanding overseas markets.
Monitoring compliance with export legislation comes at a cost. The Australian Government Cost Recovery Guidelines state that agencies should set charges to recover some or all of the costs of services that they provide.
The policy authority for continued cost recovery of export services was confirmed in the 2015–16 Budget when the Commonwealth announced the redesign of the department’s cost recovery arrangements. The redesign improves the department’s cost recovery arrangements so they are financially sustainable and support the efficient and effective delivery of export services into the future.
In June 2015, a suite of new charging legislation for which the department is responsible commenced. This includes the Export Charges (Collection) Act 2015, Export Charges (Imposition—Customs) Act 2015, Export Charges (Imposition—General) Act 2015 and Export Charges (Imposition—Excise) Act 2015. This new suite of charging legislation provides an appropriate legal framework for the recovery of different types of costs through the imposition and collection of charges, rather than fees. The Amendment Order will operate in connection with this legislation.
This new legislation overcame the limitation of the existing charging framework Export Inspection (Service Charge) Act 1985, Export Inspection (Quantity Charge) Act 1985, Export Inspection (Establishment Registration Charge) Act 1985 and the Export Inspection and Meat Charges Collection Act 1985 (and their associated regulations) under which charges could only be recovered in relation to prescribed goods within the meaning of the Act.
Impact and Effect
The Amendment Order will allow the Secretary, based on an application, to determine if a registered establishment satisfies the criteria to be considered a small horticultural products registered establishment. A determination that a registered establishment meets the criteria set out in the Amendment Order means that the registered establishment charge to be applied to that establishment is less than it would be if such a determination has not been made.
Providing for a reduced charge for small horticultural products registered establishments will support producers of a range of horticultural products to export small quantities of their own produce to export markets.
Consultation
The department consulted with stakeholders during the development of the redesigned cost recovery fees and charges. This included the department working with all export-related industry consultative committees and other clients and interested stakeholders through public engagement forums. The department released draft Cost Recovery Implementation Statements (CRISs) for public comment and provided opportunity for stakeholders to provide feedback through a submissions process.
Stakeholder feedback was taken into account and the final CRISs were certified by the Secretary of the department and endorsed by the Minister for Agriculture and Water Resources. The Minister for Finance agreed to release the final CRISs which are available on the department’s website.
The Amendment Order is compatible with human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment A.
A Regulatory Impact Statement (RIS) was completed on the department’s biosecurity, imported food and export certification cost recovery redesign (Office of Best Practice Regulation ID: 17726). OBPR assessed the RIS as best practice. A copy of the RIS is attached.
The Amendment Order is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the Export Control (Plants and Plant Products) Amendment (Registered Establishments) Order 2015
Section 1—Name
This section provides that the name of the Amendment Order is the Export Control (Plants and Plant Products) Amendment (Registered Establishments) Order 2015.
Section 2—Commencement
This section provides for the Amendment Order to commence on 1 December 2015.
Section 3—Authority
This section provides for the Amendment Order to be made under regulation 3 of the Export Control (Orders) Regulations 1982.
Section 4—Schedules
This section provides for each instrument specified in a schedule to the Amendment Order to be amended or repealed as set out in the applicable Schedule.
Schedule 1—Amendments.
Item 1 inserts into subsection 5.1 of the Order definitions for the terms: apple, cherry, citrus, pear, stone fruit, strawberry and table grapes. The purpose of this amendment is to make clear the meaning of these terms used in the table at subsection 13A(2) of this Order.
Item 2 is a technical amendment to insert ‘Division 1—General’ before section 10. The purpose of this amendment is to provide for other divisions within this part (see item 3).
Item 3 adds a new division, ‘Division 2—Small horticultural products registered establishments’ at the end of Part 3.
Section 13A in Division 2 provides for the Secretary to determine that a registered establishment is a small horticultural products registered establishment for a financial year.
Subsection 13A(1) sets out the conditions that the occupier of a registered establishment must meet so that they can apply to the Secretary for a determination that the registered establishment they occupy is a small horticultural products registered establishment. These conditions include:
- the registered establishment is only used for the production and preparation for export of a single kind of horticultural product; and
- the occupier of the registered establishment is the grower of the horticultural products; and
- the occupier of the registered establishment is not the occupier of any other registered establishment; and
- the total amount of the horticultural product to be produced and prepared at the registered establishment for export will not exceed the amount specified for that product in column 2 of the item in the table in subsection 13A(2).
Subsection 13A(2) sets out the limits for the products that can be produced and prepared for export at a small horticultural products registered establishment. Registered establishments that produce and prepare horticultural products that are not listed in the table, who export commodities listed in more than one item or exceed the limits set out in column 2 in a financial year will not be determined by the Secretary to be a small horticultural products registered establishment for that year.
Subsection 13A(3) requires that to be the grower of the horticultural product for the purpose of subsection 13A(1) the person must have a right to, or interest in, the horticultural product and contribute labour and capital to its production and preparation.
Subsection 13A(4) requires that an application by an occupier to the Secretary must include a declaration stating their compliance with the requirements set out in Subsection 13A(1). Subsection 13A(5) provides that the Secretary may require the applicant to provide additional relevant information.
Subsection 13A(6) provides that the Secretary may determine that a registered establishment is a small horticultural products registered establishment for a financial year when all requirements in this section are met and the Secretary is satisfied that the accompanying declaration is correct.
Subsection 13A(7) provides that in deciding whether to make a determination under subsection 13A(6), the Secretary may take into account past history of production and preparation at the registered establishment and any other relevant information.
The note to section 13A clarifies that if a determination is in force for a registered establishment for a financial year the charge payable in relation to the registered establishment for the financial year, under the Export Charges (Imposition—Customs) Regulation 2015 or the Export Charges (Imposition—General) Regulation 2015, is the charge set out in item 4 of the table in subsection 11(1) of the relevant regulation.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Export Control (Plants and Plant Products) Amendment (Registered Establishments) Order 2015
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 purpose of the Export Control (Plants and Plant Products) Amendment (Registered Establishments) Order 2015 (the Amendment Order) is to amend the Export Control (Plants and Plant Products) Order 2011. The Amendment Order provides for a scheme that allows the Secretary to determine if a registered establishment is a small horticultural products registered establishment for a financial year. In circumstances where the Secretary determines the registered establishment is a small horticultural products registered establishment for a financial year, the charge payable in relation to the registered establishment for the financial year, under the Export Charges (Imposition—General) Regulation 2015 or the Export Charges (Imposition—Customs) Regulation 2015, is less than it would be if such a determination has not been made.
The Amendment Order gives effect to the new export cost recovery fees developed as part of the Department of Agriculture and Water Resources’ redesign of cost recovery arrangements.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon. Barnaby Joyce MP
Minister for Agriculture and Water Resources