Export Control (Plants and Plant Products—Norfolk Island) Order 2016

EXPLANATORY STATEMENT

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

Export Control Act 1982 and Export Control (Orders) Regulations 1982

Export Control (Plants and Plant Products—Norfolk Island) Order 2016

Legislative Authority

Subsection 25(1) of the Export Control Act 1982 (EC Act) provides that the Governor-General may make regulations, consistent with the EC Act, prescribing matters required or permitted by the EC Act to be prescribed, or necessary or convenient to be prescribed for the carrying out or giving effect to the EC Act.

Paragraph 25(2)(g) of the EC Act provides that the Governor-General may make regulations empowering the Minister to make orders, consistent 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 (the Export Control Regulations) provides that the Minister may, by instrument in writing, make orders, consistent with regulations made under the EC Act, with respect to any matter for or in relation to which provision may be made by regulations made under the EC Act.

The Export Control (Plants and Plant Products—Norfolk Island) Order 2016 (Norfolk Order) is made under regulation 3 of the Export Control Regulations.

Purpose

The Norfolk Order allows the export of plants and plant products from Norfolk Island through enabling the Department of Agriculture and Water Resources (the department), in respect of Norfolk Island, to:

Background

The EC Act provides for the control of the export of certain goods and for related purposes. However, the EC Act explicitly excludes its application to Australian external territories, unless regulations have been made to extend the EC Act.

The Export Control (Plants and Plant Products) Order 2011 regulates the export of prescribed grain, fresh fruits, fresh vegetables, hay and straw, and plants and plant products for which a phytosanitary or any other certificate is required, by declaring those goods to be prescribed goods under the EC Act and specifying the conditions and restrictions for their export. The Department of Agriculture and Water Resources (the department) undertakes inspection and certification activities in relation to the preparation of prescribed goods for export.

In May 2015 the Norfolk Island Legislation Amendment Act 2015 and related Acts came into effect. These Acts provide for the Australian Government to assume responsibility for funding and delivering national and state level services to Norfolk Island. From 1 July 2016 Australian mainland taxation, social security, immigration, biosecurity, customs and health arrangements, including Medicare and the Pharmaceutical Benefits Scheme, were extended to Norfolk Island. Prior to these changes, Norfolk Island was a self-governing external territory of Australia.

Amendments made on 1 July 2016 to section 18 of the Norfolk Island Act 1979 provide that an Act or a provision of an Act extends to Norfolk Island unless the Act or another Act expressly excludes it.

As of 1 July 2016 Norfolk Island is an external territory of Australia managed by a combination of Australian Government and local administration. In accordance with specific activities listed under Purpose (above), the Norfolk Order allows the Australian Government to provide phytosanitary certification for plants and plant product exports from Norfolk Island.

Impact and Effect

At the commencement of the Norfolk Order, specific sections of the EC Act and subordinate legislation were extended to Norfolk Island. The Norfolk Order adopts existing export processes and practices used by the Norfolk Island Administration prior to 1 July 2016. Processes and practices are in accordance with Australian export requirements and allow Norfolk Island plant exporters to meet importing country requirements, including the requirement for phytosanitary certification.

Consultation

Consultation was undertaken on Norfolk Island by departmental staff prior to cessation of self-government on 30 June 2016 via a number of public forums. Public forums were attended by island administration, local biosecurity staff, shipping agents, local businesses and individuals. Changes with the introduction of the proposed Norfolk Order are considered to be minimal.

The Office of Best Practice Regulation has advised that the Norfolk Order is minor and does not require a regulation impact statement (ID 21006).

 Details of the Norfolk Order are set out in Attachment A.

The Norfolk 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 Norfolk Order is a legislative instrument for the purposes of the Legislation Act 2003.

 ATTACHMENT A

Details of the Export Control (Plants and Plant Products - Norfolk Island) Order 2016

Part 1 - Preliminary

Section 1 

This section provides that the name of this Order is the Export Control (Plants and Plant Products—Norfolk Island) Order 2016 (the Norfolk Order).

Section 2

This section provides that the Norfolk Order commences on 1 December 2016.

Section 3

This section provides that the Norfolk Order is made under regulation 3 of the Export Control (Orders) Regulations 1982.

Section 4 

This section of the Norfolk Order outlines provisions of Export Control Act 1982 (the EC Act) and subordinate legislation that extend to Norfolk Island.

Section 5

This section outlines goods to which the Norfolk Order applies and declares to be prescribed, for the purposes of the definition of prescribed goods in section 3 of the EC Act.

Section 6

This section sets out the definitions for the purposes of the Norfolk Order.

Section 7

This section allows the Secretary to determine that specified tests or certificates are required for specified prescribed goods or specified prescribed goods for export to specified countries. Such a determination could be used to ensure that Australian plant exports meet a particular standard that is not related to phytosanitary health. For example, it could be used to ensure that exports of stock feed potentially containing a biological contaminant do not pose any animal health threat to live stock. These requirements may be published as a departmental notice or circular and may be incorporated into guidelines, manuals and the like on the department’s website.

Part 2 - Phytosanitary and other certification

This part deals with the issuing of phytosanitary and other certificates. A phytosanitary certificate is a government-to-government certificate issued in accordance with the International Plant Protection Convention or at the request of an importing country authority. A phytosanitary certificate certifies that the consignment of plants or plant products:

• has been inspected in accordance with appropriate procedures

• has been tested according to appropriate procedures

• is sourced from particular areas

• is considered to be free from quarantine pests

• is considered to be practically free from other injurious pests

• conforms to the current phytosanitary regulations of the importing country.

Other certificates or tests can be required by the Secretary under section 7. Such certificates or tests would be used to ensure that Australian plant exports meet a particular standard that is not related to phytosanitary health. 

Section 8

Subsection 8(1) provides that if a certificate as to the condition of prescribed goods is required, the exporter must submit to an authorised officer information required by the authorised officer in relation to the prescribed goods, a declaration of where and when the goods may be inspected and any necessary certificates of analysis.

Subsection 8(2) requires that if a phytosanitary certificate is required for the prescribed goods, an exporter must provide an authorised officer with details of all requirements that are to be certified on the certificate. The information must be given at the time the request for inspection is submitted.

Subsection 8(3) provides that the authorised officer may issue certificates as required in relation to the export of prescribed goods. Requirements for issuing phytosanitary certificates are set out in Schedule 1.

Section 9

This section prohibits any person other than an authorised officer from issuing a phytosanitary certificate or document purporting to be a phytosanitary certificate.

This section is subject to a level 5 penal provision. A breach is punishable by up to 50 penalty units and may attract a fine of up to $5,500. This penal provision is consistent with that applied in the Export Control (Plants and Plant Products) Order 2011; and is necessary to ensure the integrity of the regulatory regime. This provision is consistent with the principles in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers 2011.

Part 3 - Miscellaneous

Section 10

Section 10(1) allows the Secretary to require audits by a qualified person for compliance with the EC Act and the Norfolk Order. An audit may be for the following matters:

•  operations for the export of prescribed goods

• operations for the certification of prescribed goods

• the work of an authorised officer.

Section 10(2) provides that the auditor is an authorised officer who is an employee of an agency of the government of the Commonwealth; and the Secretary is satisfied has the necessary skills and experience to perform the audit required, and will do so objectively, fairly and accurately.

Section 10(3) allows the Secretary to specify the scope of an audit.

Section 10(4) provides that an audit may be unannounced.

Section 10(5) provides that the auditor must give the person responsible for the matter being audited a copy of the audit report.

Section 11

This section requires occupiers of an establishment and exporters to provide assistance to auditors.

The assistance that must be provided is the assistance required by the auditor that is reasonably necessary to enable the auditor to perform the audit.

Section 11(2) sets out a non-exhaustive list of the matters that constitute assistance to an auditor, including access to premises, providing information to the auditor and operating equipment.

Section 12

This section allows the Secretary to determine electronic methods for electronic notification and certification under the Norfolk Order.

Section 13

Section 13(1) prohibits a person from altering, adding or deleting a certificate under the Norfolk Order except in accordance with subsection 13(2).

This subsection is subject to a level 2 penal provision. A breach is punishable by up to 20 penalty units and may attract a fine of up to $2,200. This penal provision is consistent with that applied in the Export Control (Plants and Plant Products) Order 2011; and is necessary to ensure the integrity of the regulatory regime. This provision is consistent with the principles in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers 2011.

Section 13(2) provides that if a certificate has been given under the Norfolk Order and an authorised officer is satisfied that any details mentioned in a certificate have changed, otherwise than in a way that is material to the issuing of the certificate, the details may be altered by the authorised officer.

Schedule 1 – Requirements relating to issuing phytosanitary certificates

This Schedule imposes requirements on an authorised officer which relate to the issuing of phytosanitary certificates pursuant to section 8. Under the United Nations Food and Agriculture Organisation International Plant Protection Convention each country has a Plant Protection Authority responsible for issuing government-to-government certificates that attest to the phytosanitary health and cleanliness of each export consignment containing plants and plant products. In Australia the department is the Plant Protection Authority responsible for issuing phytosanitary certificates.

Clause 1

This clause requires that for the purposes of issuing a phytosanitary certificate inspections must be carried out by an authorised officer.

Clause 2

This clause specifies that sampling must be undertaken in accordance with the directions of the Secretary.

Clause 3

This clause imposes a nil tolerance for pests and contaminants to all prescribed goods and empowers the Secretary to vary this tolerance level under certain circumstances.

Any contaminating material which is found by an authorised officer during an inspection must be reported to the person responsible for the goods.

Clause 4

This clause requires prescribed goods which have an insect infestation to be treated using an approved method. An approved method my include treatment with an insecticide or fumigation.

Clause 5

Subclause 5(1) sets out the requirements for using insecticides or fumigants on prescribed goods. The clause requires that the insecticide or fumigant meet all of the following requirements:

• be registered for particular use
• be used in accordance with its registered label
• be acceptable to the importing country
• be approved by the exporter.

Subclause 5(2) requires that goods treated with an insecticide or fumigant must not be presented, or re-presented for inspection until after the exposure, airing periods and safety precautions specified on the registered label, or approved by the Secretary have been observed.

Clause 6

Subclause 6(1) provides contaminants for which a nil tolerance applies, cleaning of the prescribed goods must be carried out to remove the contaminating material if the goods are to be re-presented for export.

Subclause 6(2) allows cleaning or blending below the permitted tolerance level for contaminants with a numerical tolerance.

Subclause 6(3) provides that where contamination has occurred on the outside of bags or other packages it may be removed by brushing or other mechanical means if approved by the Secretary.

Clause 7

This clause requires the exporter to request the necessary inspections and certification to comply with the requirements of the importing country authority.

Clause 8

This clause specifies the conditions applicable to issuing a certificate.

Clause 9

This clause specifies the form that a certificate should take in relation to new exports and re-export to meet importing country authority requirements.

Clause 10

Clause 10.1 provides that where a phytosanitary certificate is required but the importing country authority has not prescribed specific conditions for the goods the tolerances specified under clause 3 of Schedule 1 apply.

Clause 10(2) provides that the Secretary must determine whether certificates should be issued in cases where information on the requirements of an importing country authority is not known.

Clause 11

This clause requires that the name of the authorised officer who inspected the consignment be provided on the certificate.

Clause 12

This clause provides that treatments not supervised by an authorised officer may be added to the certificate if the exporter submits a written declaration certifying the details of the treatment carried out. Where no treatment was required the relevant section on the certificate must be struck out.

Clause 13

Clause 13(1) provides that an additional declaration may be included in relation to matters such as freedom from weed seeds; specific pests; or pest or fumigation treatment applied when such declarations are specified by an importing country authority, or are included in import permits.

Clause 13(2) provides that where no requirements for an additional declaration appears in the requirements of an importing country authority, evidence from that authority must be produced before consideration can be given to its endorsement.

Clause 13(3) provides that if no additional declarations are given the space must state ‘no additional declaration’ and any spaces not used for such declarations on a paper certificate must be struck out.

Clause 14

This clause requires an authorised officer’s signature and the Departmental seal to be on all paper certificates issued, including copies. Where the complete paper certificate is generated from a computer system that stores the authoritative records, the signature and official mark may be facsimiles. Where the authorised officer signing the certificate did not inspect the goods, records must exist to confirm the inspection of the goods and provide that the matters attested to in the certificate are correct.

Clause 15

This clause provides that adequate time must be allowed for inspection prior to shipment of goods where an importing country authority requires endorsement of phytosanitary certificates by its representatives in Australia. Phytosanitary certificates must not be submitted to a commercial body for endorsement.

Clause 16

This clause outlines the details which must be provided in the certificate to allow the consignment to be readily identified and the required steps that must be taken in completing the certificate.

Clause 17

This clause requires that both the common and botanical name of the goods appear on the certificate except for in the case of miscellaneous goods of complex composition where a botanical name is not appropriate a general term or description appearing on the packages may be used.

Clause 18

This clause requires that the consignee’s name and address must be specified on the certificate.

Clause 19

This clause provides that the point of entry must be specific to the country of import and where possible be the actual place of importation.

Clause 20

This clause excludes quality statements from a certificate unless required by the importing country authority.

Clause 21

This clause provides that where a paper version of the phytosanitary certificate is used for the goods, the original certificate must be used, with certified copies being provided at the discretion of the Secretary.

Clause 22

This clause provides that a copy of each paper phytosanitary certificate must be forwarded to the Secretary accompanied by a copy of an import permit issued by an importing country authority.

Clause 23

This clause sets out the requirements for altering a manually issued phytosanitary certificate by an authorised officer.

Clause 24

Clause 24(1) provides circumstances when re-export phytosanitary certificates must be issued for prescribed goods re-exported from Norfolk Island if phytosanitary certification is required by an importing country authority.

Clause 24(2) provides that re-export certificates must not be issued for products rejected under the Biosecurity Act 2015 or the Quarantine Act 1908 unless the products meet the requirements of the importing country.

Clause 24(3) provides that imported goods in transit or in bond through Australian ports en-route to other destinations which have not undergone formal import clearance will not be issued with a re-export phytosanitary certificate.

Clause 24(4) provides that if imported goods subsequently exported as part of a larger consignment containing Norfolk Island prescribed goods may be covered under the general phytosanitary certificate for the consignment under certain circumstances.

Clause 24(5) provides that a certificate must not be provided where an additional declaration requires endorsements relating to growing conditions or treatments in the original exporting country.

Clause 24(6) sets out the conditions for issuing a re-export phytosanitary certificate in circumstances where imported goods are to be exported and have not been accompanied by a certificate.

Clause 25

Clause 25(1) provides that re-inspection of prescribed goods is necessary if the time between inspection and export exceeds 28 days or the maximum time between inspection and export permitted by the importing country is exceeded.

Clause 25(2) provides that if the period exceeds 28 days, re-inspection must be carried out to assess whether the originally issued certificate remains valid.

Clause 25(3) provides that appropriate measures must be put in place by the exporter to ensure that if delays are likely to occur in the shipment of consignments after phytosanitary inspection has taken place the goods are not subject to infestation or infection or contamination before shipment.

Clause 25(4) provides that if an original phytosanitary certificate is found to be invalid under subclause 25.2, the exporter must surrender all copies of the certificate to an authorised officer.

Clause 25(5) provides that a consignment must be re-inspected if requested by the exporter and all paper copies of the original phytosanitary certificate are surrendered to an authorised officer.

 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—Norfolk Island) Order 2016

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—Norfolk Island) Order 2016 (the Norfolk Order) extends limited sections of the Export Control Act 1982 and subordinate legislation to Norfolk Island. 

The Norfolk Order allows the export of plants and plant products from Norfolk Island through enabling the Department of Agriculture and Water Resources, in respect of Norfolk Island, to inspect plants and plant products; issue phytosanitary and other certification as required; charge for inspection and issuance of certification and protect authorised officers and officers assisting from potential liability in conducting their duties.

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