Export Control (Sheepmeat and Goatmeat Export to the European Union Tariff Rate Quotas) Order 2016

EXPLANATORY STATEMENT

Export Control Act 1982

Export Control (Sheepmeat and Goatmeat Export to the European Union Tariff Rate Quota) Order 2016.

Legislative Authority

This order is made under Section 23A of the Export Control Act 1982 (the Export Control Act). The Export Control Act provides the Secretary of the Department of Agriculture and Water Resources (the department) with the capacity to create orders providing for, or in relation to, the establishment and administration of a system or systems of tariff rate quotas for the export of goods. 

The power to make the Export Control (Sheepmeat and Goatmeat Export to the European Union Tariff Rate Quota) Order 2016 (the Order) was delegated by the Secretary under section 19 of the Export Control Act on 3 March 2016.

Purpose

The purpose of the Order is to set out the administrative arrangements for the fair and equitable allocation of, and access to, the European Union sheepmeat and goatmeat (EU Sheepmeat) quota. The quota permits Australian exporters to export 19,186 tonnes of EU sheepmeat to the EU at a zero tariff rate. The order also sets out the certificate issuing arrangements for the EU administered erga omnes Sheepmeat and Goatmeat tariff rate quota. The erga omnes quota is administered by the EU, and is set at 200 tonnes. This 200 tonne quota is known as a global quota, as it can be accessed by a number of importing countries.

Background

The EU allows Australia to ship a quantity of EU sheepmeat to EU member countries each calendar year (1 January to 31 December) at zero tariff rate under a country-specific quota. Australia manages the quota on a cost-recovery basis.

The aim of the quota allocation is to optimise the value of the quota for the collective benefit of the Australian sheepmeat industry.

Australia also has access to the global EU erga omnes sheepmeat and goatmeat quota. This 200 tonne quota is available to a variety of countries and is therefore administered by the EU, however they require exporting countries to issue quota certificates for potential erga omnes consignments to identify product as entering under quota conditions.

Impact and Effect

The Order provides for administrative arrangements to ensure fair and equitable access by regular quota users and new entrants to the EU sheepmeat and goatmeat market. The impact of the order is minimal as it provides for administrative arrangements that are the same as the previous order.

Consultation

The department consulted the EU Sheepmeat and goatmeat quota industry through their peak industry body, the Australian Meat Industry Council throughout 2015. Regular teleconferences and meetings took place to ensure industry awareness of the changes made by the Export Control Amendment (Quotas) Act 2015, and to ensure that the transition of existing quota arrangements under the newly created section 23A of the Export Control Act 1982 were understood and fully supported.

The department consulted with the Office of Best Practice Regulation (OBPR) and was advised that a RIS is not required as the changes are minor and machinery in nature, OBPR ID:19443.

The 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.

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

Details of the Export Control (Sheepmeat and Goatmeat Export to the European Union Tariff Rate Quotas) Order 2016.

Section 1 – Name

This section outlines that the name of the Order is the Export Control (Sheepmeat and Goatmeat Export to the European Union Tariff Rate Quotas) Order 2016.

Section 2 – Commencement

This section outlines when the Order is to commence. The Order commences the day after it is registered.

Section 3 – Authority

This section outlines which authority the Order is made under. The Order is made under section 23A of the Export Control Act 1982.

Section 4 – Purpose of this instrument

This section outlines the scope of this instrument as relating to the establishment and administration of tariff rate quotas for European Union Sheepmeat and Goatmeat only.

Section 5 – Definitions

This section provides definitions of terms used within the order.

Access amount for a quota year means the total carcase equivalent weight shipped weight of eligible meat that may be exported from Australia to a member country of the EU in the quota year under the Australian tariff rate quota.

Australian tariff rate quota means the annual European Union import tariff quota for CN code 0204 that is specified for Australia in the Annex to the Commission Implementing Regulation (EU) No1354/2011, as in force from time to time.

Note: The Commission Implementing Regulation (EU) No1354/2011 could in 2016 be viewed at https://publications.europa.eu/en/home by searching the regulation number.

Carcase equivalent weight means:

a)      From bone in meat – its weight; or

b)     For boneless mutton – its weight divided by 0.55; or

c)      For boneless goatmeat – its weight divided by 0.55; or

d)     For boneless lamb – its weight divided by 0.6.

Consignment means a single shipment (by sea or air) of eligible meat by an exporter to a single consignee.

Consignment information in relation to the proposed export of a consignment of eligible meat by an exporter means the following information:

a)      the exporters name;

b)     the exporters licence number licence issued under section 10 of the Australian Meat and Live‑stock Industry Act 1997;

c)      whether the meat is chilled of frozen

d)     whether the meat is bone-in or boneless, and the carcase equivalent weight of it in each form;

e)      the importers name;

f)       the estimated shipped weight;

g)     the intended loading port and date of loading;

h)     the final destination country;

i)       the intended port of discharge.

Eligible meat means fresh, chilled or frozen mutton, lamb or goatmeat, but does not include:

a)      Edible offal; or

b)     Canned or processed meat; or

c)      Product for ships’ stores; or

d)     A product for which a tariff rate quota certificate is not required by the EU.

Erga omnes tariff rate quota means the annual European Union import tariff quota for CN code 0204 that is referred to as erga omnes in the Annex to the Commission Implementing Regulation (EU) No1354/2011, as in force from time to time.

Note: The Commission Implementing Regulation (EU) No1354/2011 could in 2016 be viewed at https://publications.europa.eu/en/home by searching the regulation number.

EU means the European Union.

EU-accredited establishment means premises that:

a)      Are under the full-time inspection and supervision of the department; and

b)     Are registered under the Export Control Act 1982; and

c)      Have been accredited by AUS-MEAT limited (ACN 082 528 881), and the Department, for the export of meat to the EU.

EXDOC means the electronic documentation system maintained by the Department.

Exporter means the older of a licence issued under section of the Australian Meat and Live-stock Industry Act 1997 allowing the holder to export sheepmeat or goatmeat to the EU.

Initial decision means a decision referred to in subsection ^22(1).

Performance year means a period of 12 months beginning on 1 November of a year.

Quota Unit means the section of the Department that is responsible for managing the system of tariff rate quotas referred to in section ^4.

Quota year means a year beginning on or after 1 January 2017.

Shipped weight of eligible meat means the actual weight of the meat (whether it is bone-in or boneless).

Tariff rate quota certificate means a certificate issued under section ^15,^16 or ^21.

Tariff rate quota entitlement of an exporter for a quota year has the meaning given by section ^6.

Section 6 – Meaning of tariff rate quota entitlement

(1)   If an exporter is allocated an amount of quota under subsection ^9(2) as their entitlement for the quota year, then their tariff rate quota entitlement for the quota year is that amount, but can be affected by:

1. any increase under subsection ^11(1);
2. any transfer of tariff rate quota under section ^12; and
3. any amount of that entitlement that has lapsed under Division 3 of Part 2.

(2)   If:

1. an exporter is not allocated quota under subsection ^9(1); But
2. an amount of tariff rate quota for the quota year is transferred to the exporter under section ^12;

The tariff rate quota entitlement of the exporter for the quota year, is the amount transferred, excluding any amount of that entitlement that has lapsed under Division 3 of Part 2.

Part 2 – Australian tariff rate quota

Division 1 – General

Section 7 – Purpose of this part

This Part provides for a system of quotas for the export from Australia to a member country of the EU of eligible meat under the Australia managed quota.
 

Division 2 – Allocation of tariff rate quota entitlements etc.

Section 8 – Application for allocation of tariff rate quota entitlement.

This section outlines when quota is to be applied for.

(1)   The Secretary may:

1. invite exporters to apply for an allocation of quota; and
2. set a time frame for applications to be returned by.

(2)   If the Secretary gives an invitation under subsection (1), exporters may apply for an allocation of quota entitlement for the quota year.

(3) The application must be:

1. given to the Quota Unit before the deadline set under paragraph (1); and
2. made in the form approved by the Secretary.

Section 9 – Allocation of tariff rate quota entitlements

This section provides for the allocation of quota.

(1)   This section applies if:

1. an exporter has applied for a quota entitlement in accordance with section 8.

(2)   Subject to subsection (3), the Secretary must allocate the following amounts ot the exporter as their quota for the quota year:

1. the amount worked out under section ^10 for the exporter; plus
2. any amount redistributed to the exporter under paragraph 3 of this section.
    

(3)   If an exporter’s allocation is calculated under section 10, and is less than 12,000 kilograms:

1. the exporter does not receive a quota entitlement for the quota year: and
2. the amount is to be redistributed proportionately among the exporters who were allocated quota under paragraph (2).

(4)   If the Secretary allocates quota entitlements for a quota year to an exporter, the Secretary must give the exporter written notice stating the amount of the entitlement.

Section 10 – Working out amount for tariff rate quota entitlement

This section outlines how exporters’ allocations are calculated.

The Secretary must use the following formula to work out the amount to be allocated to an exporter as the exporter’s tariff rate quota entitlement for a quota year:

AA means the access amount (^5 Definitions) for the quota year.

Exporter’s accredited exports is the carcase equivalent weight of all the exporter’s exports of eligible meat from an EU-accredited establishment to any foreign country in the previous performance year, including amounts transferred to the exporter under section ^18 in the previous performance year.

Exporter’s quota exports is the carcase equivalent weight of the exporter’s exports of eligible meat to the EU in the previous performance year under the Australian tariff rate quota.

Previous performance year is the performance year beginning on 1 November of the calendar year that began 2 years before the quota year began.

Quota applicant is an exporter who applied for an allocation of tariff rate quota entitlement for the quota year in accordance with section ^8.

Total accredited exports is the carcase equivalent weight of all quota applicants’ exports of eligible meat from an EU-accredited establishment to any foreign country in the previous performance year, including amounts transferred to an applicate under section ^18 in the previous performance year.

Total quota exports is the carcase equivalent weight of all quota applicants’ exports of eligible meat to the EU in the previous performance year under the Australian tariff rate quota.

Section 11 – Increasing tariff rate quota entitlements in certain circumstances

This section provides for ways in which quota entitlements can increase.

(1)   The Secretary may increase the amount of an exporter’s tariff rate quota entitlement for a quota year if;

1. a country becomes a member country of the EU; and
2. the access amount for the quota year is increased as a result; and
3. the exporter exported eligible meat to the country before the year in which the country became a member country of the EU.

(2)   For subsection (1), the year in which a country becomes a member country of the EU is the year determined by the EU.

(3)   If the Secretary increases the amount of an exporter’s quota entitlement for the quota year, they must give the exporter written notice stating the amount of the increase.

Section 12 – Transfer of tariff rate quota entitlements

This section outlines how exporters can transfer quota between one another.

(1)   An exporter (the transferor) may transfer all or part of their quota entitlement for a quota year to another exporter (the transferee).

(2)   The transferor must notify the quota unit, in writing, of the following information:

1. the name of the transferor;
2. the name of the transferee;
3. the carcase equivalent weight, in kilograms, of the amount of tariff rate quota entitlement transferred.

Division 3 – Unused tariff rate quota entitlements

Section 13 – Relinquishment of unused tariff rate quota entitlement before 1 November

This section outlines how exporters’ should deal with unused quota before 1 November.

(1)   An exporter may, at any time before 1 November in a quota year, make a declaration stating that they are relinquishing an amount of unused tariff rate quota entitlement for the quota year.

(2)   The declaration must be made in writing and given to the quota unit.

(3)   If an exporter makes a declaration under subsection (1) in relation to a relinquished amount, the amount lapses, at the time the declaration is given.

Section 14 – Declaration etc. relating to unused tariff rate quota entitlement

This section outlines what exporters need to include in their declarations about the use of unused quota.

(1)   An exporter who has a tariff rate quota entitlement for a quota year must, before the end of 31 October in the quota year,

1.  make a declaration stating:
   1. how the exporter intends to deal with any amount of their tariff rate quota entitlement for the quota year that will be unused at the end of the day; and
   2. what amount of unused quota the exporter intends to apply for one or more quota certificates under section ^15; and
   3. what amount of unused quota entitlement for the quota year that they will relinquish; and
2. give consignment information in relation to the proposed export of one or more consignments, with a weight that is equal to the amount stated in subparagraph (a)(ii).

(2)   The declaration must be made in writing and given to the Quota Unit.

(3)   The consignment information must be made in writing and given to the Quota Unit.

(4)   If an exporter makes a declaration under paragraph (1)(a)(iii) in relation to a relinquished amount, the amount lapses at the time the declaration is given.

Failure to give a declaration etc. relating to unused tariff rate quota entitlement

(5)   If:

1. an exporter has an amount of tariff rate quota entitlement for a quota year that is unused at the end of 31 October in the quota year; and
2. the exporter did not make a declaration in accordance with subsection (1) about the unused amount;

the unused amount lapses at the start of November 1 in the quota year.

Failure to use tariff rate quota entitlement in relation to which consignment information was given

(6)   If:

1. an exporter gives the Secretary consignment information under paragraph (1)(b) in relation to the proposed export of a consignment of eligible meat; and
2. the consignment information specified the carcase equivalent weight (the specified consignment weight) of the consignment; and
3. before the export date for the consignment the exporter has not applied for one or more quota certificates under section ^15 that in total weigh (the certified consignment weight) equal to the specified consignment weight;

then, that amount of the exporters quota entitlement for the quota year that is equal to the difference between the specified and certified weights lapses at the start of the export date for the consignment.

Division 4 – Tariff rate quota certificates

Section 15 – Tariff rate quota certificates in relation to exporter’s tariff rate quota

 entitlement

This section outlines the certification process for exporter’s quota entitlement.

Application for tariff rate quota certificate

(1)   An exporter who has a quota entitlement for the quota year may apply for a quota certificate for the export of eligible meat to the EU under the Australian tariff rate quota.

(2)   The application must be made in EXDOC.

Issue of tariff rate quota certificate

(3)   If an export applies for quota under subsection (1) for a consignment of eligible meat in a quota year, the Secretary must issue the certificate to the exporter, provided the amount does not exceed the exporter’s quota entitlement for the quota year.

Effect of tariff rate quota certificate

(4)   If a quota certificate is issued before the start of a quota year, the certificate will have no effect until after the quota year has begun.

(5)   A quota certificate ceases to have effect if the consignment is not accepted for entry into a member country of the EU before the end of the quota year.

Section 16 – Tariff rate quota certificates in relation to lapsed tariff rate quota

 entitlements

This section outlines the certification process for lapsed quota

Application for tariff rate quota certificate

(1)   If there is an amount of quota that has lapsed under division 3, an exporter whom was given an allocation of quota at the beginning of the quota year, may apply for a quota certificate to export eligible meat to the EU after October 31.

(2)   The application must be made in EXDOC

Issue of tariff rate quota certificate

(3)   If an export applies for quota under subsection (1) for a consignment of eligible meat in a quota year, the Secretary must issue the certificate to the exporter, provided the amount does not exceed the access amount for the quota year.

Effect of tariff rate quota certificate

(4)   A quota certificate ceases to have effect if the consignment is not accepted for entry into a member country of the EU before the end of the quota year.

Division 5 – Miscellaneous matters

Section 17 – How to work out how much eligible meat has been exported

This section provides for how the department works out how much meat has been exported

(1)   If an exporter has been issued a quota certificate under sections 15 or 16, the weight stated on the certificate is the amount of eligible meat that the exporter has exported.

Consignment weight is less than weight stated in certificate

(2)   If:

1.  when received in the EU, the weight of the consignment is less than the amount stated on the quota certificate; and
2.  the relevant EU authority annotates the certificate; and
3. provided the Quota Unit receives a copy of this annotated certificate prior to 5pm on the next October 31 after the certificate was issued:

the exporter is not taken to have exported the difference between the weights

No export of consignment

(3)   If the exporter:

1.  does not export the consignment in the quota year: and
2.  all copies of the certificate are returned to the Quota Unit by 5pm on the next 31 October after the certificate was issued;

the exporter is not taken to have exporter the weight stated in the certificate.

Consignment is refused entry into the EU

(4)   If

1. a consignment of eligible meat is refused entry into the EU; and
2. the exporter returns all copies of the quota certificate to the Quota Unit by the earlier of:
   1. 5 pm the next October 31 after the certificate was issued; and
   2. 3 months after the consignment leaves Australia;

the exporter is not taken to have exported the weight stated on the certificate.

Section 18 – Transfers of export records

This section outlines how exporters’ can transfer their export history to other exporters. This is referred to as the transfer of performance, which allows exporters to increase their shipping history for the purposes of gaining a quota allocation.

(1)   An exporter can transfer all or part of their weight of eligible exports from an EU-Accredited establishment in a performance year, to another exporter. This is provided that the export does not receive Australian tariff rate quota.

(2)   The exporter transferring the quota must notify the Quota Unit, in writing, before 5pm on 7 November after the end of the performance year. The notification must include;

1. the transferor’s name
2. the transferee’s name
3. the weight in kilograms to be transferred.

Section 19 – Errors in export records

This section outlines the process for notifying the Quota Unit of any errors in export records.

(1)   If an exporter believes that records received from the Quota Unit contain error(s), the exporter must notify the Quota Unit within 30 days of receiving the record.

(2)   If the Quota Unit receives a notification of error after 30 days, the notification will have no effect.

Part 3 – Erga omnes tariff rate quota

Section 20 – Purpose of this part

This part provides for a system of tariff rate quota for the export from Australia to the EU under the erga omnes tariff rate quota.

Section 21 – Tariff rate quota certificate for erga omnes tariff rate quota

This section outlines how to apply for erga omnes quota

Application for tariff rate quota certificate

(1)   An exporter may apply for a quota certificate for export to the EU in the quota year under the erga omnes tariff rate quota.

(2)   The application cannot be made:

1. more than 3 months before the start of the quota year; or
2. after the quota year has ended.

(3)   The application must be made in EXDOC.

Issue of tariff rate quota certificate

(4)   If an exporter applies under subsection (1), the Secretary may issue the quota certificate to the exporter.

(5)   If the Secretary decides not to issue the quota certificate, they must supply the exporter with written notice that sets out:

1. the terms of the decision; and
2. the reasons for the decision; and
3. the exporter’s right to have the decision reviewed under part 4.

Effect of the tariff rate quota certificate

(6)   If a quota certificate is issued before the start of a quota year, then the certificate has no effect until after the quota year has begun.

(7)   A quota certificate ceases to have effect if the consignment is not accepted for entry into a member country of the EU before the end of the quota year.

Part 4 – Review

Section 22 – Application for reconsideration by Secretary of a decision under part 3

(1)   If:

1. an exporter applies for a certificate under subsection 21 (1); and
2. the Secretary decides not to issue the certificate under subsection ^21 (4);

the exporter may apply to the Secretary to have the decision reconsidered.

(2)   The application must:

1. be made in writing; and
2. the reasons for the application must be set out; and
3. be lodged with the Secretary within 28 days after being notified of the initial decision, or within a further period allowed by the Secretary.

Section 23 – Secretary to reconsider decision

(1)   When an application made under section ^22 has been received, the Secretary:

1. must reconsider the original decision; and
2. make any decision that he or she might have made in the first instance.

(2)   If the Secretary sets aside a decision made under subsection (1), the initial decision ceases to have effect.

(3)   The Secretary must give written notice of the decision within 45 days of receiving the application.

(4)   The notice must set out the reasons for the Secretary’s decision.

Section 24 – Review by administrative tribunal

Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Secretary made under section 23.

Part 5 – Miscellaneous

Section 25 – Decisions made by computer

(1)   The Secretary may arrange for the use of computer programs for making decisions under this instrument.

(2)   A decision made by a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Secretary.

Part 6 – Savings provisions

Section 26 – Transfer of exports in performance year starting on 1 November 2015

(1)   This section applies if: 

1. an exporter gives a notice before or after the commencement of this instrument under section 21 of the Australian Meat and Live stock Industry (Sheepmeat and Goatmeat Export to the European Union) Order 2014; and
2. the notice relates to a transfer of all or part of their weight of eligible exports from an EU-Accredited establishment in a performance year starting on 1 November 2015 to another exporter.

(2)   The transfer must be taken into account in working out the quota entitlements of exporters for the quota year starting on 1 January 2017.

Section 27 – Record of exports given before 1 January 2017

(1)   This section applies if: 

c.       an exporter was given a record of the exporter’s exports under section 21 of the Australian Meat and Livestock Industry (Sheepmeat and Goatmeat Export to the European Union) Order 2014 before 1 January 2017; and

d.      immediately before that day, the 30 day period referred to in that section has not ended.

(2)   The record is taken, on and after 1 January 2017, to be a record given to the exporter under section ^19 of this instrument on the day the record was given to the exporter under section 23 of the old order.

Section 28 – Repeal of this Part

This Part is repealed at the start of 1 January 2019.

Attachment A

Statement of Compatibility with Human Rights

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

Export Control (Sheepmeat and Goatmeat Export to the European Union Tariff Rate Quota) 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 purpose of the Export Control (Sheepmeat and Goatmeat Export to the European Union Tariff Rate Quota) Order 2016 is to set out the administrative arrangements for the system of tariff rate quotas for the export of sheepmeat and goatmeat quota goods from Australia to the EU.

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.

Jenny Cupit

Assistant Secretary

Residues and Food Branch

Exports Division

 Department of Agriculture and Water Resources