Agricultural and Veterinary Chemicals (Administration) Amendment Act 2004

No. 12, 2004

An Act to amend the Agricultural and Veterinary Chemicals (Administration) Act 1992, and for related purposes

[Assented to 11 March 2004]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Agricultural and Veterinary Chemicals (Administration) Amendment Act 2004.

2 Commencement

This Act commences on the day after the day on which it receives the Royal Assent.

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Agricultural and Veterinary Chemicals (Administration) Act 1992

1 After section 69B

Insert:

69CA Providing information about certain chemical products etc. to comply with international agreements

Regulations may prescribe international agreements

(1) The regulations may prescribe an international agreement or arrangement for the purposes of this section.

Regulations may prescribe information about import etc. of certain chemicals

(2) For the purposes of complying with a prescribed agreement or arrangement, the regulations may prescribe the following information in respect of a prescribed active constituent for a proposed or existing chemical product, or a prescribed chemical product:

(a) information about the import of the constituent or product into Australia;

(b) information about the manufacture or use of the constituent or product in Australia;

(d) information about the export of the constituent or product from Australia.

(3) For each constituent or product, the regulations must identify the relevant international agreement or arrangement.

A person must provide prescribed information about prescribed constituents or products

(4) A person must provide any relevant prescribed information in respect of a prescribed constituent or product if the person imports, manufactures, uses, deals with or exports the constituent or product.

Note 1: A person who fails to provide the information or who provides false or misleading information may commit an offence against section 69CD.

Note 2: Section 69C might prohibit or restrict the import, manufacture, use, dealing or export of a prescribed constituent or product.

(5) The information must be provided to the relevant agency in an approved form within the period prescribed for the constituent or product in the regulations.

Commencement of regulations

(6) A regulation made for the purposes of this section in respect of a constituent or product may be expressed to come into force when the relevant international agreement or arrangement enters into force for Australia, but must not be expressed to come into force before that time.

69CB Providing information about certain chemical products etc. under international consideration

Regulations may prescribe constituents and products

(1) The regulations may prescribe the following active constituents for a proposed or existing chemical product, or the following chemical products, for the purposes of this section:

(a) a constituent or product that is the subject of an international agreement or arrangement that has not entered into force for Australia;

(b) a constituent or product that is the subject of consideration:

(i) by an international organisation, or by an organ of or a body established by an international organisation, or by Australia together with any other country; and

(ii) in relation to an international agreement or arrangement (including one that has not entered into force for Australia) or in relation to negotiations for an international agreement or arrangement.

Regulations may prescribe information about import etc. of such constituents or products

(2) The regulations may prescribe the following information in respect of a prescribed constituent or product:

(a) information about the import of the constituent or product into Australia;

(b) information about the manufacture or use of the constituent or product in Australia;

(d) information about the export of the constituent or product from Australia.

Constitutional basis for this section

(3) The reference in paragraphs (2)(b) and (c) to the manufacture or use of, or other dealings with, a constituent or product in Australia is confined to the following:

(a) the manufacture or use of, or other dealings with, the constituent or product in Australia by trading corporations formed within the limits of the Commonwealth, or foreign corporations, within the meaning of paragraph 51(xx) of the Constitution;

(b) the manufacture or use of, or other dealings with, the constituent or product in Australia for supply in the course of trade and commerce:

(i) with other countries; or

(ii) among the States; or

(iii) within a Territory; or

(iv) between a State and a Territory or between 2 Territories;

(c) the manufacture or use of, or other dealings with, the constituent or product in Australia for supply to, or to an authority or instrumentality of, the Commonwealth or a Territory;

(d) the manufacture or use of, or other dealings with, the constituent or product in a Territory.

A person must provide prescribed information about prescribed constituents or products

Note: A person who fails to provide the information or who provides false or misleading information may commit an offence against section 69CD.

(5) The information must be provided to the relevant agency in an approved form within the period prescribed for the constituent or product in the regulations.

69CC Relevant agency to provide information to other countries

(1) A relevant agency may inform a country, the appropriate authority of a country or a relevant international organisation regarding the following:

(a) the movements into or out of Australia of an active constituent or chemical product prescribed in regulations made under section 69CA or 69CB;

(b) the manufacture or use of such a constituent or product in Australia;

(2) A relevant agency may provide the information in such terms and on such conditions as the agency thinks fit, having regard to:

(a) the terms of any relevant international agreement or arrangement; and

(b) the interest of any person in maintaining confidentiality in relation to movements, manufacture or use of, or other dealings with, the constituent or product.

69CD Offences relating to providing information under sections 69CA and 69CB

Offence for failing to provide information

(1) A person commits an offence if:

(a) the person is required to provide information under section 69CA or 69CB; and

(b) the person fails to provide the information under that section.

Penalty: 50 penalty units.

(2) In subsection (1), strict liability applies to the physical element of circumstance that the information is required to be provided under section 69CA or 69CB.

Note: For strict liability, see section 6.1 of the Criminal Code.

Offence for false or misleading information

(3) A person commits an offence if:

(a) the person provides information (whether orally or in writing) to a relevant agency under section 69CA or 69CB; and

(b) the person knows that the information is false or misleading in a material particular; and

(i) without the person indicating to the agency that it is false or misleading; and

(ii) without the person indicating how it is false or misleading; and

(iii) without the person providing to the agency correct information that the person possesses or can reasonably acquire.

Penalty: 300 penalty units.

(4) The fault element for paragraph (3)(c) is recklessness.

Note: For recklessness, see section 5.4 of the Criminal Code.

(5) In subsection (3), strict liability applies to the physical element of circumstance that the information is provided under section 69CA or 69CB.

Note: For strict liability, see section 6.1 of the Criminal Code.

2 Subsection 69C(1)

Repeal the subsection, substitute:

Regulations may prohibit import etc. of certain chemical products under international agreements

(1) If an active constituent for a proposed or existing chemical product, or a chemical product, is the subject of an international agreement or arrangement prescribed for the purposes of this section, the regulations may prohibit any one or more of the following:

(a) the import of the constituent or product into Australia;

(b) the manufacture or use of the constituent or product in Australia;

(d) the export of the constituent or product from Australia.

The prohibition may be either absolute or subject to such conditions or restrictions as are prescribed.

Note: The heading to section 69C is replaced by the heading “Prohibition on import, manufacture, use or export of certain chemical products etc. under international agreements”.

3 Subparagraph 69C(2)(a)(iii)

Repeal the subparagraph.

Note: The following heading to subsection 69C(2) is inserted “Requirements for making regulations”.

4 After subsection 69C(2)

Insert:

(2A) A regulation made for the purposes of subsection (1) in respect of a constituent or product may be expressed to come into force when the relevant international agreement or arrangement enters into force for Australia, but must not be expressed to come into force before that time.

5 Subsections 69C(3) and (4)

Repeal the subsections.

6 Subsection 69C(5)

After “manufacture”, insert “, use, deal with”.

Note: The following heading to subsection 69C(5) is inserted “Offence for contravening conditions or restrictions”.

7 Subsection 69C(6)

Repeal the subsection.

8 After subsection 69EA(1)

Insert:

Records relating to import etc. of chemical products prescribed under section 69CA, 69CB or 69C

(1A) A person who imports into Australia, manufactures, uses or deals with in Australia, or exports from Australia, an active constituent or chemical product prescribed in regulations made under section 69CA, 69CB or 69C must:

(a) keep any records relating to the import, manufacture, use, dealing or export that are reasonably necessary to enable the Department to find out whether those sections have been complied with; and

(b) retain those records for 6 years.

Penalty: 30 penalty units.

Note: The following heading to subsection 69EA(1) is inserted “Records relating to compliance with sections 69B, 69C and 69E”.

9 Subsection 69EA(2)

After “(1)”, insert “or (1A)”.

Note: The following heading to subsection 69EA(2) is inserted “Strict liability”.

10 At the end of Division 2 of Part 7A

Add:

69EAA Definitions

In this Division:

approved form means a form approved by the Secretary or prescribed by the regulations.

deal with, in relation to an active constituent for a proposed or existing chemical product, or in relation to a chemical product, includes supply or otherwise dispose of the constituent or product.

relevant agency means the Department or the NRA.

[Minister’s second reading speech made in—

House of Representatives on 11 February 2004

Senate on 1 March 2004]

(5/04)