EXPLANATORY STATEMENT
Issued by the Authority of the Deputy Prime Minister and Minister for Agriculture and Water Resources
Export Control Act 1982
Export Control (Orders) Regulations 1982
Export Control (Plants and Plant Products) Amendment (Small Horticultural Products Registered Establishments) Order 2017
Legislative Authority
Section 25 of the Export Control Act 1982 (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 the carrying out or giving effect to the Act.
Regulation 3 of the Export Control (Orders) Regulations 1982 (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 (Small Horticultural Products Registered Establishments) Order 2017 (Amendment Order) is made under regulation 3 of the Regulations.
Purpose
The Amendment Order amends section 13A of the Export Control (Plants and Plant Products) Order 2011 (Plant Order). The purpose of this amendment is to enable more small growers of horticultural products to enter the export market through a lower annual registered establishment charge by broadening the eligibility criteria for small horticultural products registered establishments (SHPREs).
Background
The export of horticultural products is regulated by the Act and relevant delegated legislation, including the Export Control (Prescribed Goods—General) Order 2005 and the Plant Order. The primary objective of the legislation is to provide assurance that Australia’s agricultural exports meet importing country requirements. To achieve this, the legislation facilitates government oversight of the export supply chain and enables the Department of Agriculture and Water Resources (department) to provide certification (verified through inspection) to attest to the condition of goods proposed for export. The delivery of this assurance to our trading partners is critical to gaining, maintaining and expanding market access.
The legislation provides the legal basis for the regulation of the export of horticultural products, specifying conditions that exporters must meet to be able to export these products. For example, a consignment of horticultural products must be prepared and inspected at a registered establishment, enabling the department to issue a phytosanitary certificate declaring the products free from plant pests and diseases.
In 2015, the department introduced a new category of registered establishments called SHPREs. The new category was designed to promote competitiveness and stimulate export participation within the horticulture sector, particularly for small growers through lower participation costs.
Section 13A of the Plant Order allows the Secretary to determine whether an establishment meets the eligibility criteria of a SHPRE, which is based on the kinds of horticultural products and the total volume (in tonnes) for export in a financial year. This criteria was developed based on an analysis of historic export volumes (based on tonnage) and industry feedback.
Being categorised as a SHPRE allows the department to impose a reduced annual charge of $600 for a registered establishment, rather than a charge of $6,000 or $3,000. The reduced registration charge for SHPREs is set out in item 4 of the table in subsection 11(1) of the Export Charges (Imposition—General) Regulation 2015. It was implemented as part of the department’s redesign of cost recovery arrangements for the performance of export services, incentivising small growers to export their produce.
However, the uptake of SHPREs by small growers of horticultural products has been significantly lower than expected. Based on feedback from industry, this was due to the criteria being too restrictive. Specifically, SHPREs can only export a kind of horticultural product listed in the table in subsection 13A(2) of the Plant Order, not all kinds of horticultural products. In addition, applicants for SHPREs are required to be occupiers of an existing registered establishment, and SHPREs can only produce and prepare for export a single kind of horticultural product, not multiple kinds of horticultural products.
The amendments to the Plant Order will broaden the criteria set out in section 13A of the Plant Order in order to address this lower-than-expected uptake. These changes include:
- removing the requirement for an applicant to be an occupier of an existing registered establishment prior to making an application to the Secretary to be registered as a SHPRE for a financial year
- removing the requirement for a SHPRE to be used only for operations with the production and preparation for export of a single horticultural product
- expanding the list of horticultural products to include all other kinds of horticultural products.
Impact and Effect
The Amendment Order is expected to enable a wider group of growers of horticultural products to enter the export market through the competitive rate of the reduced annual charge for SHPREs. Such growers could include those who are currently not occupiers of an existing registered establishment as well as those who grow multiple kinds of horticultural products and kinds of horticultural products that will be added to the table in subsection 13A(2) of the Plant Order. These products include melons, avocados, kiwi fruit, cut flowers and other kinds of horticultural products, such as plant nursery stock.
Growers who will be eligible under the expanded criteria will be financially advantaged through the imposition of a reduced annual charge of $600 for a registered establishment as a SHPRE, rather than a charge of $6,000 or $3,000.
Consultation
The department consulted industry to identify potential improvements. Industry feedback suggested that this criteria is too restrictive, limiting uptake of SHPREs.
The amendments to this criteria (detailed above) were submitted to and endorsed by members of the department’s Horticulture Export Industry Consultative Committee, which include representatives of the horticulture producer and export industries. The committee includes representatives from the following industry representative bodies:
- Apple and Pear Australia Ltd
- Australian Horticulture Exporters’ Association
- Australian Mango Industry Association
- Australian Table Grape Association Inc.
- Australian Vegetables and Potatoes Growers
- Cherry Growers Australia Inc.
- Citrus Australia Ltd
- Horticulture Innovation Australia Ltd
- Nursery and Garden Industry Australia
- Summerfruit Australia Ltd.
The Office of Best Practice Regulation (OBPR) was consulted. OBPR has advised that the amendments to be introduced by the Amendment Order are minor in nature and do not require a Regulation Impact Statement (ID 21922).
Details of the Amendment Order are set out in Attachment A.
The Amendment Order is compatible with the 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 the Attachment B.
The Amendment Order is a legislative instrument for the purposes of the Legislation Act 2003.
ATTACHMENT A
Details of the Export Control (Plants and Plant Products) Amendment (Small Horticultural Products Registered Establishments) Order 2017
Section 1 – Name
This section provides that the name of this instrument is the Export Control (Plants and Plant Products) Amendment (Small Horticultural Products Registered Establishments) Order 2017 (Amendment Order).
Section 2 – Commencement
This section provides that the Amendment Order commences on the day after this instrument is registered.
Section 3 – Authority
This section provides that the Amendment Order is made under regulation 3 of the Export Control (Orders) Regulations 1982.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument 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 sets out the amendments to the Export Control (Plants and Plant Products) Order 2011 (Plant Order), primarily to section 13A, to broaden the criteria for determining that an establishment is a small horticultural products registered establishment (SHPRE) for a financial year.
Clause 1 – Subsection 5.1
This clause inserts five additional definitions in subsection 5.1 of the Plant Order. These definitions include:
- the term ‘avocado’ as having the same meaning as in Part 4 of Schedule 22 to the Primary Industries Levies and Charges Collection Regulations 1991, which is defined as meaning a fruit of the species Persea americana, as amended from time to time
- the term ‘cut flowers’ as including processed cut flowers, which is consistent with the definition of ‘cut flowers and foliage’ in Schedule 10 of the Primary Industries (Customs) Charges Act 1999
- the term ‘horticultural products’ as having the same meaning as in the Export Charges (Imposition—Customs) Regulation 2015, as amended from time to time
- the term ‘kiwi fruit’ as meaning a fruit of the species Actinidia deliciosa
- the term ‘melon’ as having the same meaning as in Part 31 of the Schedule 22 to the Primary Industries Levies and Charges Collection Regulations 1991, as amended from time to time. ‘Melon’ is defined in the Primary Industries Levies and Charges Collection Regulations 1991 as meaning fruit of any of the following species or varieties:
- Citrullus lanatus, commonly called watermelon
- Cucumis melo, commonly called rockmelon
- Cucumis melo var. cantalupensis, commonly called charentais melon
- Cucumis melo var. inodorus, commonly called honeydew or piel de sapo
- Cucumis melo var. makuwa, commonly called Korean melon
- Cucumis melo var. reticulatus, commonly called galia melon or hami melon
- Cucumis metuliferus, commonly called horned melon.
Clause 2 – Subsection 13A(1)
This clause omits the reference to “of a registered establishment” in subsection 13A(1) and substitutes it with “of an establishment”. This change removes the requirement for an applicant to be an occupier of an existing registered establishment prior to making an application to the Secretary for a determination under subsection (6) of the Plant Order that the establishment is a SHPRE for a financial year, thereby allowing for such an application to be made in relation to an establishment that is not already registered.
Clause 3 – Paragraph 13A(1)(a)
This clause repeals current paragraph 13A(1)(a) and inserts a new paragraph 13A(1)(a), removing the condition that a SHPRE is only used for the production and preparation for export of a single kind of horticultural product. Instead, the new paragraph allows an application in relation to an establishment to be used for operations associated with the production and preparation for export of one or more kinds of horticultural products, rather than only a single horticultural product. This is subject to the condition that the operations associated with each kind of horticultural product do not exceed the total amount for export in a financial year referred to in column 2 of the table under subsection (2) of the Plant Order for that product.
Clause 4 – Paragraphs 13A(1)(c) and (d)
This clause repeals current paragraphs 13A(1)(c) and (d) and substitutes them with new paragraphs 13A(1)(c), (d) and (e).
Subparagraph (1)(c)(i) mirrors the current paragraph (1)(c), which requires that if the application is in relation to an existing registered establishment, the occupier must not be an occupier of any other registered establishment. Subparagraph (1)(c)(ii) requires that if the application is in relation to an establishment that is not already registered, the occupier must not be an occupier of an existing registered establishment.
Paragraphs (1)(d) and (e) require that the total amount of the relevant horticultural product to be produced and prepared for export at the establishment will not exceed the amount specified for that product in column 2 of the new table in the subsection 13A(2). This condition applies regardless of whether those products are a specific horticultural product referred to in any of table items 1 to 13 or all other kinds of horticultural products referred to in item 14 of the new table in subsection 13A(2).
Clause 5 – After subsection 13A(1)
This clause inserts a new subsection after subsection 13A(1). New subsection 13A(1A) requires that if the occupier of an establishment that is not already registered wishes to make an application under subsection (1), the applicant must make such an application at the same time as the application for the registration of the establishment under Part 4 of the Export Control (Prescribed Goods—General) Order 2005 and Schedule 3 of the Plant Order.
Clause 6 – Paragraph 13A(2)(b)
This clause omits the reference to “paragraph (1)(d)” in paragraph 13A(2)(b) and substitutes it with “paragraphs (1)(d) and (e)”, to reflect the change to the conditions in subsection 13A(1).
Clause 7 – Subsection 13A(2) (table)
This clause repeals the current table in the subsection 13A(2) and substitutes it with a new table. The new table expands the list of horticultural products and total amount for export in a financial year that could be produced and prepared for export at a SHPRE to include additional kinds of horticultural products, including all other kinds of horticultural products. These additional kinds of horticultural products and their total amount (in tonnes) for export in financial year include:
- melons with a maximum export volume of 10 tonnes in a financial year
- avocados with a maximum export volume of 5 tonnes in a financial year
- kiwi fruit with a maximum export volume of 5 tonnes in a financial year
- cut flowers with a maximum export volume of 5 tonnes in a financial year
- all other kinds of horticultural products with a maximum export volume of 5 tonnes in a financial year.
Clause 8 – Subsection 13A(4)
This clause omits the reference to “a registered establishment” in subsection 13A(4) and substitutes it with “an establishment”. This change is consistent with the change made by clause 2, which allows for an application to be made under subsection 13A(1) in relation to an establishment that is not already registered.
Clause 9 – Subsection 13A(4)
This clause omits the reference to “paragraphs (1)(a) to (d)” in subsection 13A(4) and substitutes it with “paragraphs(1)(a) to (e)”, to reflect the change to conditions in subsection 13A(1).
Clause 10 – Paragraph 13A(7)(a)
This clause omits the reference to “registered” in paragraph 13A(7)(a). This change is consistent with the change made by clause 2, which allows for an application to be made under subsection 13A(1) in relation to an establishment that is not already registered.
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 (Small Horticultural Products Registered Establishments) Order 2017
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 (Small Horticultural Products Registered Establishments) Order 2017 (Amendment Order) amends section 13A of the Export Control (Plants and Plant Products) Order 2011 (Plant Order). The purpose of this amendment is to enable more small growers of horticultural products to enter the export market through a lower registration charge for small horticultural products registered establishments (SHPREs).
SHPREs are a category of registered establishments that were designed to promote competitiveness and stimulate export participation within the horticulture sector, particularly for small growers, through a reduced registration charge of $600, compared to a charge of $6,000 or $3,000.
The Amendment Order broadens the criteria set out in section 13A of the Plant Order in order to address a lower-than-expected uptake of SHPREs since their introduction in 2015. These changes include:
- removing the requirement for an applicant to be an occupier of an existing registered establishment prior to making an application to the Secretary to be registered as a SHPRE for a financial year
- removing the requirement for a SHPRE to be used only for operations with the production and preparation for export of a single horticultural product
- expanding the list of horticultural products to include all kinds of horticultural products.
The Amendment Order is expected to enable a wider group of growers of horticultural products to enter the export market through the competitive rate of the reduced registration charge for SHPREs.
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
Deputy Prime Minister and Minister for Agriculture and Water Resources