Commonwealth Coat of Arms of Australia

Export Control Act 2020

No. 12, 2020

An Act to provide for the control of the export of certain goods, and for related purposes

[Assented to 6 March 2020]

The Parliament of Australia enacts:

Chapter 1—Preliminary

Part 1—Preliminary

1 Short title

This Act is the Export Control Act 2020.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	6 March 2020
2. Sections 3 to 432	A single time (in the Australian Capital Territory) to be fixed by Proclamation. However, if the provisions do not commence before 3 am (by legal time in the Australian Capital Territory) on 28 March 2021, they commence at that time.	3 am (A.C.T.) 28 March 2021

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Objects of this Act

The objects of this Act are the following:

(a) to ensure that goods that are exported:

(i) meet relevant importing country requirements to enable and maintain overseas market access for goods exported from Australia; and

(ii) comply with government or industry standards or requirements relating to the goods; and

(iii) are traceable and, if necessary, can be recalled;

(b) to ensure the integrity of goods that are exported;

(d) to give effect to Australia’s rights and obligations relating to goods that are exported under any international agreements to which Australia is a party.

4 Simplified outline of this Act

This Act creates a framework for regulating the export of goods, including agricultural products and food, from Australian territory.

This Act includes provisions about the application of this Act and the relationship of this Act with State and Territory laws.

Certain goods are prohibited absolutely from being exported from Australian territory.

The Minister may, by legislative instrument (a temporary prohibition determination), determine:

(a) that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, is prohibited absolutely for a specified period of up to 6 months; or

(b) that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, to a specified place is prohibited for a specified period of up to 6 months.

The Minister may make a temporary prohibition determination only if the Minister is satisfied that the determination is necessary:

(a) to protect human, animal or plant life or health; or

(b) to secure compliance with an Australian law (other than this Act).

The rules may prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless prescribed conditions are complied with. Conditions may be prescribed for the purpose of ensuring that importing country requirements are met or government or industry standards or requirements are complied with, or to give effect to Australia’s international obligations. The rules may require, for example:

(a) export operations in relation to prescribed goods to be carried out at an accredited property or a registered establishment, or in accordance with an approved arrangement or an export licence; or

(b) a person to hold an approved arrangement or an export licence covering prescribed goods; or

(d) a notice of intention to export a consignment of prescribed goods to be given; or

(e) a government certificate or an export permit to be in force for certain goods.

The Secretary may grant an exemption from one or more provisions of this Act in relation to prescribed goods that are to be exported in certain circumstances.

A government certificate may be issued in relation to prescribed goods and non‑prescribed goods that are to be, or that have been, exported.

The rules may make provision for and in relation to the establishment and administration of a system, or systems, of tariff rate quotas for the export of certain goods.

Authorised officers (including third party authorised officers) and other persons may exercise certain powers, including the following:

(a) conducting audits of export operations and audits in relation to the performance of functions and the exercise of powers under this Act;

(b) carrying out assessments of goods;

(d) carrying out approved export programs for the purpose of ensuring the health and welfare of certain live animals.

A range of compliance and enforcement powers are provided, including by applying the Regulatory Powers (Standard Provisions) Act 2014.

Certain decisions under this Act may be reviewed internally and by the Administrative Appeals Tribunal.

The use and disclosure of information is regulated.

Fees may be charged, on a cost‑recovery basis, in relation to activities carried out by, or on behalf of, the Commonwealth in the performance of functions or the exercise of powers under this Act.

The Secretary may make rules for the purposes of this Act. The rules are a disallowable legislative instrument.

5 Act binds the Crown

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to be:

(a) prosecuted for an offence; or

(b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or

6 Application of this Act in Australia

General

(1) Subject to subsections (2) to (4), this Act applies in Australia, and in the exclusive economic zone adjacent to Australia, and on or in the continental shelf adjacent to Australia, in relation to:

(a) all persons or bodies (including foreign persons or bodies); and

(b) all aircraft (including foreign aircraft); and

Note: A reference to Australia includes a reference to the coastal sea of Australia. See section 15B of the Acts Interpretation Act 1901.

Limited application in the exclusive economic zone

(2) This Act applies in an area that is, or is part of, the exclusive economic zone adjacent to Australia in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of goods that have been taken in that area.

(3) However, subsection (2) does not prevent the exercise of powers under this Act in the contiguous zone of Australia (including the external Territories) in relation to a foreign person or body, a foreign aircraft or a foreign vessel:

(a) to investigate a contravention of this Act that occurred in Australia; or

(b) to prevent a contravention of this Act occurring in Australia.

Limited application on or in the continental shelf

(4) This Act applies in an area that:

(a) is on or in the continental shelf adjacent to Australia; and

(b) is not within the exclusive economic zone adjacent to Australia;

in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of natural resources that have been harvested on the continental shelf in that area.

Note: For natural resources, see section 12.

(5) This section has effect subject to section 10.

7 Limited application of this Act outside Australia

(1) This Act applies in an area covered by subsection (2) in relation to the following:

(a) Australian nationals;

(b) Australian residents;

(d) Commonwealth bodies;

(e) Australian aircraft;

(f) Australian vessels;

(g) members of crews of Australian aircraft and Australian vessels (including persons in charge of Australian aircraft or Australian vessels).

(2) This subsection covers an area that:

(a) is outside the outer limits of the exclusive economic zone adjacent to Australia and is not on or in the continental shelf adjacent to Australia; and

(b) is not an external Territory, or the exclusive economic zone adjacent to an external Territory, or on or in the continental shelf adjacent to an external Territory.

8 Extension of this Act to external Territories and other areas

(1) Subject to subsection (2), this Act does not extend to the external Territories.

(2) The rules may extend this Act, or any provisions of this Act:

(a) to an external Territory that is prescribed by the rules; or

(b) to any of the following areas that are prescribed by the rules:

(i) the whole or a part of the exclusive economic zone adjacent to an external Territory;

(ii) the whole or a part of the area that is on or in the continental shelf adjacent to an external Territory and is not within the exclusive economic zone adjacent to that Territory; or

(c) to an area outside the Australian fishing zone in relation to which the Fisheries Management Act 1991 applies under regulations made for the purposes of section 8 of that Act.

(3) The rules may extend this Act, or any provisions of this Act, to an area adjacent to an external Territory under subparagraph (2)(b)(i) or (ii) whether or not this Act extends to that external Territory.

Note 1: The reference to this Act includes a reference to instruments made under this Act (see the definition of this Act in section 12).

Note 2: A provision of this Act that extends to an external Territory is taken to have effect in, and in relation to, the coastal sea of the Territory as if that coastal sea were part of the Territory (see subsection 15B(3) of the Acts Interpretation Act 1901).

9 Application of this Act in external Territories and other areas

General

(1) If a provision of this Act extends to an external Territory or an area adjacent to an external Territory under subsection 8(2), then subject to subsections (2) to (5), the provision applies in the external Territory or the adjacent area in relation to:

(a) all persons or bodies (including foreign persons or bodies); and

(b) all aircraft (including foreign aircraft); and

Limited application in the contiguous zone

(2) If a provision of this Act extends to an external Territory under paragraph 8(2)(a), nothing in this Act prevents the exercise of powers under this Act in the contiguous zone adjacent to the external Territory (or in the contiguous zone adjacent to Australia) in relation to a foreign person or body, a foreign aircraft or a foreign vessel:

(a) to investigate a contravention of this Act that occurred in that Territory; or

(b) to prevent a contravention of this Act occurring in that Territory.

Limited application in the exclusive economic zone

(3) If a provision of this Act extends to an area adjacent to an external Territory under subparagraph 8(2)(b)(i), the provision applies in that area in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of goods that have been taken in that area.

(4) However, subsection (3) does not prevent the exercise of powers under this Act in the contiguous zone adjacent to the external Territory (or in the contiguous zone adjacent to Australia) in relation to a foreign person or body, a foreign aircraft or a foreign vessel for a purpose referred to in paragraph (2)(a) or (b).

Limited application on or in the continental shelf

(5) If a provision of this Act extends to an area under subparagraph 8(2)(b)(ii), the provision applies in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of natural resources that have been harvested on the continental shelf in that area.

Note: For natural resources, see section 12.

(6) This section has effect subject to section 10.

10 Rights of foreign aircraft and vessels under Convention on the Law of the Sea not affected

This Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign aircraft or foreign vessels, in accordance with the United Nations Convention on the Law of the Sea, above or in any of the following:

(a) the territorial sea of Australia (including the external Territories);

(b) the exclusive economic zone of Australia (including the external Territories);

11 Concurrent operation of State and Territory laws

(1) This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

(2) Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:

(a) the law makes an act or omission:

(i) an offence; or

(ii) subject to a civil penalty; and

(b) that (or any similar) act or omission is also:

(i) an offence against a provision of this Act; or

(ii) subject to a civil penalty under this Act.

(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty:

(a) provides for a penalty that differs from the penalty provided in this Act;

(b) provides for fault elements that differ from the fault elements applicable to the offence or civil penalty provision created by this Act;

(c) provides for defences or exceptions that differ from the defences or exceptions applicable to the offence or civil penalty provision created by this Act.

Part 2—Interpretation

Division 1—Definitions

12 Definitions

In this Act:

accredited property means a property that is accredited under Chapter 3.

accredited veterinarian means a veterinarian who is accredited in accordance with rules made for the purposes of subsection 312(1).

adjacent premises warrant means a warrant issued under section 335.

aircraft means any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface.

animal includes a dead animal and any part of an animal, but does not include a human or a part of a human, whether the human is dead or alive.

animal reproductive material:

(a) means any part of an animal from which another animal can be produced; and

(b) includes an embryo, an egg or ovum, and semen.

applied, in relation to a trade description, has the meaning given by section 247.

appropriate person for premises to which an adjacent premises warrant relates, or premises entered under section 346 or 347, means:

(a) the occupier of the premises; or

(b) another person who apparently represents the occupier.

approved arrangement means an approved arrangement under Chapter 5.

approved assessor:

(a) means a person, or a person included in a class of persons, approved under subsection 281(1); and

(b) includes a person included in a class of persons specified by rules made for the purposes of section 282.

approved auditor:

(a) means a person, or a person included in a class of persons, approved under subsection 273(1); and

(b) includes a person included in a class of persons specified by rules made for the purposes of section 274.

approved export program means a program of export operations approved under subsection 311(1).

assessor means:

(a) an approved assessor; or

(b) an authorised officer whose functions and powers include carrying out an assessment of goods under Part 2 of Chapter 9.

associate of a person has a meaning affected by section 13.

auditor means:

(a) an approved auditor; or

(b) an authorised officer whose functions and powers include conducting an audit under Part 1 of Chapter 9.

Australian aircraft means an aircraft that is registered under regulations made under the Civil Aviation Act 1988.

Australia New Zealand Food Standards Code has the same meaning as in the Food Standards Australia New Zealand Act 1991.

Australian fishing zone has the same meaning as in the Fisheries Management Act 1991.

Australian law means a law of the Commonwealth, or of a State or Territory.

Australian national means:

(a) an Australian citizen; or

(b) a body corporate established by or under a law of the Commonwealth or of a State or Territory.

Australian resident means:

(a) an individual who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(b) a body corporate that has its principal place of business in Australia.

Australian territory has the meaning given by section 14.

Australian vessel means an Australian ship within the meaning of the Shipping Registration Act 1981.

authorised officer means (except as provided by section 324) a person who is authorised under section 291 to be an authorised officer under this Act.

Note: Section 324 provides a modified meaning of authorised officer for the purposes of Chapter 10 (compliance and enforcement).

certificate of registration, for a registered establishment, means the most recent certificate of registration for the establishment given to the occupier of the establishment under Chapter 4.

civil penalty provision has the same meaning as in the Regulatory Powers Act.

Commonwealth authorised officer means an authorised officer who is an officer or employee of a Commonwealth body.

Commonwealth body includes a Department of State, or an authority, of the Commonwealth.

conveyance means any of the following:

(a) an aircraft;

(b) a vessel;

(d) any other means of transport prescribed by the rules.

corporation means a corporation within the meaning of the Corporations Act 2001.

cost‑recovery charge means:

(a) a fee prescribed by rules made for the purposes of subsection 399(1) for a fee‑bearing activity; or

(b) a charge imposed by:

(i) the Export Charges (Imposition—Customs) Act 2015; or

(ii) the Export Charges (Imposition—Excise) Act 2015; or

(iii) the Export Charges (Imposition—General) Act 2015; or

covering, in relation to goods, includes a bottle, box, capsule, case, container, frame, glass, seal, stopper and wrapper.

dishonest, in relation to conduct engaged in by a person, means dishonest according to the standards of ordinary people.

economic consequences for Australia includes the following:

(a) substantial damage to Australia’s trading reputation;

(b) a restriction on, or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia.

eligible animal reproductive material means prescribed goods that are animal reproductive material.

eligible live animals means prescribed goods that are live animals.

enforcement body has the same meaning as in the Privacy Act 1988.

enforcement‑related activity has the same meaning as in the Privacy Act 1988.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

entered for export has the meaning given by section 15.

establishment has the same meaning as premises.

evidential material has the same meaning as in the Regulatory Powers Act.

examine includes count, gauge, grade, measure and weigh.

executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body corporate, who is concerned in, or takes part in, the management of the body corporate.

expiry date:

(a) for the accreditation of a property—has the meaning given by subsection 82(4); or

(b) for the registration of an establishment—has the meaning given by subsection 115(4); or

(d) for an export licence—has the meaning given by subsection 194(4).

export means export from Australian territory to a place outside Australian territory.

Note: See also section 20 which provides for when goods are exported.

export business means a business that carries out export operations in relation to a kind of goods.

export licence means an export licence granted under Chapter 6.

export operations has the meaning given by section 16.

export permit means an export permit issued under Part 2 of Chapter 7.

false trade description has the meaning given by section 251.

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

fee‑bearing activities has the meaning given by subsection 399(1).

fish means aquatic vertebrates and aquatic invertebrates but does not include mammals or birds.

fit for human consumption means safe and suitable for human consumption.

food includes:

(a) any substance or thing of a kind used, or capable of being used, for human consumption (whether it is live, raw, prepared or partly prepared); and

(b) any substance or thing of a kind used, or capable of being used, as an ingredient or additive in a substance or thing referred to in paragraph (a);

whether or not the substance or thing is in a condition fit for human consumption.

foreign aircraft means an aircraft other than an Australian aircraft.

foreign person or body means any of the following:

(a) an individual who is not an Australian national or an Australian resident;

(b) a body corporate that is not an Australian national or an Australian resident;

(d) a trust, where the trustee, or a majority of the trustees, are covered by any or all of the above paragraphs.

foreign vessel means a vessel other than an Australian vessel.

goods means any of the following:

(a) an animal or a plant;

(b) an article, substance or thing (including reproductive material) derived from an animal or a plant, whether or not in combination with any other article, substance or thing;

(d) any other article, substance or thing;

but does not include narcotic goods within the meaning of the Customs Act 1901.

government certificate means a certificate (other than a tariff rate quota certificate) in relation to goods that are to be, or that have been, exported and that relates to any of the following:

(a) matters in respect of which a country requires certification before goods of that kind may be imported into that country from Australian territory or from a part of Australian territory;

(b) requirements of this Act that must be complied with before goods of that kind may be exported;

husbandry activities, in relation to a live animal, means activities relating to the care and maintenance of the animal (for example, housing, daily monitoring, feeding, cleaning of facilities and administration of medication).

importing country requirement, in relation to goods that are to be imported into a country from Australian territory or from a part of Australian territory, means a requirement of that country that must be met before the goods may be imported into that country from Australian territory or from that part of Australian territory.

installation has the meaning given by section 17.

integrity has the meaning given by section 18.

International Plant Protection Convention means the International Plant Protection Convention, done at Rome on 6 December 1951, as in force from time to time.

Note: The Convention is in Australian Treaty Series 1952 No. 5 ([1952] ATS 5) and could in 2020 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

investigation warrant means:

(a) a warrant issued under section 70 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection 329(1); or

(b) a warrant signed by an issuing officer under section 71 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection 329(1).

issuing body for a government certificate in relation to a kind of goods means a person or body that may issue a government certificate in relation to goods of that kind under section 63.

issuing officer means:

(a) a magistrate; or

(b) a Judge of a court of a State or Territory; or

label includes a tag, band, ticket, brand and pictorial or other descriptive matter.

landing place means any place where an aircraft can land, including:

(a) an area of land or water; and

(b) an area on a building or a vessel.

late payment fee has the meaning given by section 403.

manager of a property means the person who is responsible for the day‑to‑day management of the property.

mark includes a stamp, seal and label.

monitoring warrant means a warrant issued under section 32 of the Regulatory Powers Act as it applies in relation to this Act.

natural resources has the same meaning as in paragraph 4 of Article 77 of the United Nations Convention on the Law of the Sea.

Note: Paragraph 4 of Article 77 of the Convention provides as follows:

The natural resources referred to in this Part consist of the mineral and other non‑living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

nominated export permit issuer, in relation to a kind of prescribed goods, means a person who:

(a) manages or controls export operations in relation to goods of that kind that are covered by an approved arrangement; and

(b) is nominated in the approved arrangement as a person who may issue export permits for goods of that kind.

Note: A nominated export permit issuer in relation to a kind of prescribed goods may only issue export permits for goods of that kind if the power to issue export permits for goods of that kind has been subdelegated to the nominated export permit issuer under paragraph 288(2)(c).

non‑prescribed goods means goods of a kind that are not prescribed goods.

notice of intention to export means a notice under section 243.

occupier, of an establishment where export operations in relation to goods are, were or will be carried out, has the meaning given by section 19.

official mark means a mark that is an official mark for the purposes of this Act under rules made for the purposes of subsection 255(1).

official marking device has the meaning given by subsection 257(1).

permanently prohibited goods means goods the export of which is prohibited absolutely by Subdivision A of Division 2 of Part 1 of Chapter 2.

person has a meaning affected by sections 421, 422 and 423.

personal information has the same meaning as in the Privacy Act 1988.

plant means a live plant or a dead plant, and includes any part of a plant.

port includes a harbour.

PPSA security interest means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.

Note 1: The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:

(a) section 8 (interests to which the Act does not apply);

(b) section 12 (meaning of security interest);

Note 2: For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.

premises includes the following:

(a) a structure, building or conveyance;

(b) a place (whether or not enclosed or built on), including a place situated underground or under water;

Note: Premises does not include a conveyance in Part 4 of Chapter 10 (compliance and enforcement) (see section 332).

prepare, in relation to goods, includes the following:

(a) admission of animals for slaughter, being animals from which goods are to be derived;

(b) slaughter or kill animals from which goods are to be derived;

(d) take (whether from the wild or otherwise):

(i) fish; or

(ii) fish from which goods are to be derived;

(e) process, pack and store goods;

(f) treat goods;

(g) handle and load goods.

Note: Take, in relation to fish, means catch, capture, or harvest (see the definition of take in this section).

prescribed agriculture law means a law (other than this Act) that is administered by the Minister and is prescribed by the rules.

prescribed export conditions means conditions prescribed by rules made for the purposes of section 29.

prescribed goods means goods of a kind prescribed by rules made for the purposes of subsection 28(1), but does not include a kind of goods in the circumstances prescribed by rules made for the purposes of subsection 28(4).

Note: The rules may prescribe a class of goods for the purposes of subsection 28(1) or (4).

produce, in relation to goods, includes the following:

(a) pick or harvest (whether from the wild or otherwise):

(i) goods; or

(ii) goods from which goods are to be derived;

(b) capture or take (whether from the wild or otherwise):

(i) goods other than fish; or

(ii) goods (other than fish) from which goods are to be derived;

(i) fish; or

(ii) fish from which goods are to be derived;

(d) breed, or carry out husbandry activities in relation to:

(i) live animals; or

(ii) live animals from which goods are to be derived;

(e) grow:

(i) plants; or

(ii) plants from which goods are to be derived.

property has the same meaning as premises.

protected information means information obtained under, or in accordance with, this Act.

protected person has the meaning given by subsection 430(4).

registered establishment means an establishment that is registered under Chapter 4.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

related provision means the following:

(a) a provision of this Act that creates an offence;

(b) a civil penalty provision of this Act;

relevant Commonwealth liability means:

(a) a cost‑recovery charge that is due and payable; or

(b) a pecuniary penalty, or other liability for an amount, imposed by or under a prescribed agriculture law.

Note: A relevant Commonwealth liability of a person is taken to have been paid for the purposes of a provision of this Act in certain circumstances (see section 431).

relevant court means:

(a) the Federal Court; or

(b) the Federal Circuit Court; or

relevant person:

(a) for an audit under Part 1 of Chapter 9—has the meaning given by section 269; or

(b) for an assessment of goods under Part 2 of Chapter 9—has the meaning given by section 278; or

(c) for a reviewable decision referred to in column 1 of an item in the table in subsection 381(1)—means the person referred to in column 3 of that item; or

(d) for a reviewable decision prescribed by rules made for the purposes of subsection 381(2)—means the person specified by the rules as the relevant person for that decision.

relevant premises, in Part 5 of Chapter 10, has the meaning given by section 345.

reviewable decision has the meaning given by subsections 381(1) and (2).

rules means rules made under section 432.

secondary permissible purpose means a purpose of:

(a) achieving the objects of this Act; or

(b) administering or enforcing any of the following:

(i) a prescribed agriculture law;

(ii) another Australian law, to the extent that the law relates to public health, food safety, biosecurity, the export of goods from Australian territory, the health and welfare of live animals, or the health and condition of animal reproductive material.

Secretary means the Secretary of the Department.

sensitive information means information or an opinion about an individual’s criminal record that is also personal information.

State or Territory authorised officer means an authorised officer who is an officer or employee of a State or Territory body.

State or Territory body includes a Department of State, or an authority, of a State or Territory.

take, in relation to fish, means catch, capture, or harvest.

tariff rate quota certificate means a certificate provided for by rules made for the purposes of section 264.

temporary prohibition determination means a determination made under paragraph 24(1)(a) or (b).

third party authorised officer means a person who is authorised under paragraph 291(6)(a) to be a third party authorised officer under this Act.

this Act includes:

(a) legislative instruments made under this Act; and

(b) the Regulatory Powers Act as it applies in relation to this Act.

trade description has the meaning given by subsections 246(1) and (2).

United Nations Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, as in force for Australia from time to time.

Note: The Convention is in Australian Treaty Series 1994 No. 31 ([1994] ATS 31) and could in 2020 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

use, in relation to information, includes make a record of.

vessel:

(a) means any kind of vessel used in navigation by water, however propelled or moved, including the following:

(i) a barge or other floating craft;

(ii) an air‑cushion vehicle, or other similar craft, used wholly or primarily in navigation by water; and

(b) includes:

(i) an installation; and

(ii) any floating structure.

13 Meaning of associate

(1) Associate of a person (the first person) includes each of the following:

(a) a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of:

(i) the first person; or

(ii) any corporation of which the first person is an officer or employee or in which the first person holds shares;

(b) a spouse, de facto partner, child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of the first person;

(c) a child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of a spouse or de facto partner of the first person;

(d) any other person not mentioned in paragraph (a), (b) or (c) who is or was:

(i) directly or indirectly concerned in; or

(ii) in a position to control or influence the conduct of;

a business or undertaking of:

(iii) the first person; or

(iv) a corporation of which the first person is an officer or employee, or in which the first person holds shares;

(e) a corporation:

(i) of which the first person, or any of the other persons mentioned in paragraphs (a), (b), (c) and (d), is an officer or employee; or

(ii) in which the first person, or any of those other persons, holds shares;

(f) if the first person is a body corporate—another body corporate that is a related body corporate (within the meaning of the Corporations Act 2001) of the first person.

(2) Without limiting who is a child of another person for the purposes of this Act, a person is the child of another person if the person is:

(a) a stepchild or adopted child of the other person; or

(b) a child of the other person within the meaning of the Family Law Act 1975.

(3) Without limiting who is a stepchild of another person for the purposes of this Act, a child of a de facto partner of the other person is the stepchild of the other person if the child would be the other person’s stepchild except that the other person is not legally married to the partner.

(4) Without limiting who is a parent of another person for the purposes of this Act, a person is the parent of another person if the other person is a child of the person because of the definition of child in subsection (2).

(5) For the purposes of this Act, if one person is the child of another person because of the definition of child in subsection (2), relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

14 Meaning of Australian territory

A reference in a provision of this Act to Australian territory is a reference to:

(a) Australia; and

(b) the exclusive economic zone adjacent to Australia; and

(d) each external Territory to which the provision extends under paragraph 8(2)(a); and

(e) each area to which the provision extends under subparagraph 8(2)(b)(i); and

(f) the waters above each area to which the provision extends under subparagraph 8(2)(b)(ii); and

(g) each area to which the provision extends under paragraph 8(2)(c).

Note: Under subsection 8(2), the rules may extend this Act, or any provisions of this Act, to an external Territory and to certain other areas.

15 Meaning of entered for export

Goods are entered for export if, in the course of the preparation or production of the goods for export, the goods are presented to, or information about the goods is given to:

(a) an authorised officer; or

(b) another person who is authorised to exercise powers or perform functions under this Act in relation to the goods;

for the purpose of the authorised officer or other person exercising powers or performing functions under this Act in relation to the goods.

16 Meaning of export operations

Export operations means any of the following:

(a) operations to export goods;

(b) operations to produce, or prepare, goods for export;

(c) operations (other than operations referred to in paragraph (a) or (b)) in relation to goods for export before they are exported;

(d) operations in relation to goods that have been exported up until the delivery of the goods to their final overseas destination or, in the case of live animals intended to be slaughtered, up until and including the point of slaughter;

(e) any other operations in relation to the export of goods.

Examples of operations:

(a) for the purposes of paragraph (b)—breeding or carrying out husbandry activities in relation to livestock from which meat for export is to be derived;

(b) for the purposes of paragraph (c)—transporting goods, applying a trade description or official mark to goods, carrying out certification functions in relation to goods, and issuing an export permit for a kind of prescribed goods;

(c) for the purposes of paragraph (d)—monitoring the goods during their journey to the importing country and up until their delivery to their final overseas destination or, in the case of live animals intended to be slaughtered, up until and including the point of slaughter;

(d) for the purposes of paragraph (e)—operations for the purpose of assuring the supply chain relating to certain prescribed goods up until their delivery to their final overseas destination, and manufacturing official marks or official marking devices.

Note: See also section 20 which provides for when goods are exported.

17 Meaning of installation

An installation is a structure that:

(a) is able:

(i) to float or to be floated; and

(ii) to move, or to be moved, as an entity from one place to another; and

(b) is, or is to be, used wholly or principally in:

(i) exploring or exploiting natural resources (such as fish or minerals) with equipment on, or forming part of, the structure; or

(ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i) of this paragraph; and

(i) is attached to, or resting on, the seabed; or

(ii) is attached semipermanently or permanently to a structure that is attached to, or resting on, the seabed.

Note: An installation is a vessel for the purposes of this Act (see paragraph (b) of the definition of vessel in section 12).

18 Meaning of integrity

The integrity of goods is ensured if the identity or composition of the goods, in relation to any condition, restriction or other description that applies in relation to the goods:

(a) is ascertainable; and

(b) is maintained without loss, addition or substitution; and

19 Meaning of occupier

(1) The occupier of a registered establishment is the person in whose name the establishment is registered.

(2) An occupier of an establishment (other than a registered establishment) where export operations in relation to goods are, were or will be carried out, is:

(a) the person that operates, operated or will operate the business of carrying out export operations in relation to goods at the establishment; or

(b) a person that manages or controls, managed or controlled or will manage or control export operations carried out in relation to goods at the establishment.

Division 2—Other interpretation provisions

20 When goods are exported

(1) For the purposes of this Act, goods are exported when the conveyance transporting the goods from Australian territory commences its journey to a place outside Australian territory (whether or not that place is the intended final overseas destination for the goods).

Note: If goods are transported between landing places or ports in Australian territory, the goods are exported when the conveyance transporting the goods commences its journey from the last landing place or port in Australian territory before leaving Australian territory.

(2) To avoid doubt, subsection (1) applies in relation to goods if:

(a) the goods:

(i) were taken from waters (other than internal waters) in Australian territory; or

(ii) were harvested on the continental shelf adjacent to Australia; or

(iii) were harvested in an area on the continental shelf adjacent to an external Territory to which the Act extends under subparagraph 8(2)(b)(ii); and

(b) after being taken or harvested, the goods:

(i) were loaded onto a conveyance in Australian territory for transportation to a place outside Australian territory; or

(ii) were taken to a place outside Australian territory; and

21 Persons who manage or control export operations

For the purposes of this Act, a person is taken to be a person who manages or controls, or would manage or control, export operations if:

(a) the person has, or would have, authority to direct the export operations, or an important or substantial part of the export operations; or

(b) the person has, or would have, authority to direct another person who has, or would have, authority of the kind referred to in paragraph (a) in the exercise of that authority or proposed authority.

Chapter 2—Exporting goods

Part 1—Goods

Division 1—Introduction

22 Simplified outline of this Part

Certain goods are prohibited absolutely from being exported from Australian territory. These goods are called permanently prohibited goods.

The Minister may, by legislative instrument (a temporary prohibition determination), determine:

The Minister may make a temporary prohibition determination only if the Minister is satisfied that the determination is necessary:

(a) to protect human, animal or plant life or health; or

(b) to secure compliance with an Australian law (other than this Act).

A temporary prohibition determination may be varied to extend the temporary prohibition period for further periods of up to 6 months.

The rules may prescribe kinds of goods (prescribed goods) for the purposes of this Act. In deciding whether to prescribe goods that are not animals, plants or food, the Secretary may have regard to relevant matters, including importing country requirements, sanitary matters, Australian laws and standards, Australia’s international rights and obligations and international standards.

The rules may:

(a) prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless conditions prescribed by the rules are complied with; or

(b) prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, to a specified place unless conditions prescribed by the rules are complied with.

A person may commit an offence or be liable to a civil penalty if:

(a) permanently prohibited goods, or goods in relation to which a temporary prohibition determination applies, are exported; or

(b) goods are exported, and intended to be imported into a particular place, and the export of the goods to that place is prohibited by a temporary prohibition determination; or

(d) the person makes false or misleading representations about goods that are entered for export.

Division 2—Prohibited goods

Subdivision A—Permanently prohibited goods

23 Goods that are prohibited from export absolutely

The export from Australian territory of split vetch (being split seed of Vicia sativa) is prohibited absolutely.

Note 1: For Australian territory, see section 14.

Note 2: Division 4 sets out offences and civil penalty provisions for exporting permanently prohibited goods.

Subdivision B—Temporarily prohibited goods

24 Minister may temporarily prohibit export of goods from Australian territory, or from a part of Australian territory, for a period

(1) The Minister may, by legislative instrument, determine:

Note 1: A determination that is in force under paragraph (1)(a) or (b) is called a temporary prohibition determination.

Note 2: The temporary prohibition period may be extended under section 25.

Note 3: For Australian territory, see section 14.

(2) The Minister may make a determination under paragraph (1)(a) or (b) only if the Minister is satisfied that the determination is necessary:

(a) to protect human, animal or plant life or health; or

(b) to secure compliance with an Australian law (other than this Act).

(3) A determination under paragraph (1)(a) or (b) must set out the reasons for making the determination.

Note: Division 4 sets out offences and civil penalty provisions for exporting goods in relation to which a temporary prohibition determination applies.

25 Variation of temporary prohibition determination

(1) The Minister may vary a temporary prohibition determination to extend the period specified in the determination for a further period of up to 6 months.

(2) The Minister may vary a temporary prohibition determination under subsection (1) only if the Minister is satisfied that the variation is necessary:

(a) to protect human, animal or plant life or health; or

(b) to secure compliance with an Australian law (other than this Act).

(3) The Minister may vary a temporary prohibition determination under subsection (1) more than once.

(4) A determination varying a temporary prohibition determination must set out the reasons for making the variation.

(5) This section does not otherwise limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to a temporary prohibition determination.

26 Effect of temporary prohibition determination on government certificate or export permit

Effect on government certificate

(1) If:

(a) a government certificate has been, or is, issued in relation to a kind of goods that are to be, or that have been, exported; and

(b) a temporary prohibition determination applies in relation to goods of that kind;

then the government certificate is taken to have been revoked on the date the temporary prohibition determination takes effect or immediately after the certificate is issued (whichever is later).

Effect on export permit

(2) If:

(a) an export permit has been, or is, issued for a kind of prescribed goods that are to be exported; and

(b) a temporary prohibition determination applies in relation to goods of that kind;

then the export permit is taken to have been revoked on the date the temporary prohibition determination takes effect or immediately after the permit is issued (whichever is later).

27 Temporary prohibition determination prevails over inconsistent rules

If a temporary prohibition determination is inconsistent with the rules:

(a) the determination prevails; and

(b) the rules have no effect to the extent that they are inconsistent with the determination.

Division 3—Prescribed goods and conditions of export

28 Rules may prescribe goods for the purposes of this Act

(1) The rules may prescribe kinds of goods (prescribed goods) for the purposes of this Act.

(2) Rules made for the purposes of subsection (1) may prescribe a kind of goods by reference to particular circumstances, including, for example:

(a) a place to which the goods are, or are intended to be, exported; and

(b) the intended use of the goods.

(3) In deciding whether to prescribe a kind of goods referred to in paragraph (d) of the definition of goods in section 12, the Secretary may have regard to the following matters:

(a) any importing country requirements relating to goods of that kind;

(b) sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to goods of that kind;

(d) Australia’s rights and obligations relating to goods of that kind under any international agreements to which Australia is a party;

(e) any international standards relating to goods of that kind;

(f) any other matter the Secretary considers relevant.

(4) The rules may provide that a kind of goods is taken not to be prescribed goods for the purposes of this Act in the circumstances prescribed by the rules.

29 Rules may prohibit export of prescribed goods subject to conditions

(1) The rules may:

(a) prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless conditions prescribed by the rules are complied with; or

(b) prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, to a specified place unless conditions prescribed by the rules are complied with.

Note 1: The rules are made by the Secretary under section 432. They are a disallowable legislative instrument and are subject to sunsetting under the Legislation Act 2003.

Note 2: The Minister may, by legislative instrument, give directions to the Secretary in relation to the performance of the Secretary’s functions or the exercise of the Secretary’s powers in making rules under section 432 (see subsection 289(1)).

Note 3: For Australian territory, see section 14.

Note 4: Division 4 sets out offences and civil penalty provisions for exporting prescribed goods in contravention of prescribed export conditions.

(2) Without limiting subsection (1), the rules may prescribe conditions in relation to the export of prescribed goods, or the export of prescribed goods to a specified place, that:

(a) require export operations to be carried out in relation to the goods:

(i) at an accredited property; or

(ii) at a registered establishment; or

(iii) at another kind of premises prescribed by the rules; or

(iv) in accordance with an approved arrangement; or

(v) in accordance with an export licence; or

(vi) in any other way prescribed by the rules; or

(b) require the exporter to hold one or more of the following:

(i) an approved arrangement covering the goods;

(ii) an export licence covering the goods;

(iii) a government certificate in relation to the goods;

(iv) an export permit for the goods;

(v) another kind of permission, consent or approval, granted as prescribed by the rules, to export the goods; or

(c) relate to export operations to be carried out in relation to the goods, including in relation to the following matters:

(i) premises, equipment and facilities to be used to produce or prepare the goods;

(ii) hygiene;

(iii) loading and transport of the goods;

(iv) identification, tracing, recall and transfer of the goods;

(v) ensuring the integrity of the goods;

(vi) trade descriptions;

(vii) official marks.

(3) Also, without limiting subsection (1), the rules may prescribe conditions in relation to the export of prescribed goods, or the export of prescribed goods to a specified place, that are required to be complied with in respect of matters or things not related to the goods themselves.

(4) Despite subsection 14(2) of the Legislation Act 2003, rules made for the purposes of this section may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing, as in force or existing from time to time, if the instrument or other writing is published on the Department’s website.

Note: The Department’s website is http://www.agriculture.gov.au.

Division 4—Offences and civil penalty provisions

30 Exporting goods that are subject to absolute prohibition on export—basic contravention

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) either:

(i) the goods are permanently prohibited goods; or

(ii) the export of the goods is prohibited absolutely by a temporary prohibition determination.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

31 Exporting goods that are subject to absolute prohibition on export—intention to obtain commercial advantage

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) either:

(i) the goods are permanently prohibited goods; or

(ii) the export of the goods is prohibited absolutely by a temporary prohibition determination; and

(c) the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) if the person is a body corporate—the amount under section 50A.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).

Alternative verdict

(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 30(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 30(2); and

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) if the person is an individual—4,000 penalty units; or

(b) if the person is a body corporate—the amount under section 50A.

32 Exporting goods that are subject to absolute prohibition on export—economic consequences for Australia

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) either:

(i) the goods are permanently prohibited goods; or

(ii) the export of the goods is prohibited absolutely by a temporary prohibition determination; and

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) if the person is a body corporate—the amount under section 50A.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).

Alternative verdict

(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 30(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 30(2); and

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) if the person is an individual—4,000 penalty units; or

(b) if the person is a body corporate—the amount under section 50A.

33 Conveying or possessing goods that are subject to absolute prohibition on export and are intended to be exported etc.

Person intends to export goods

(1) A person contravenes this subsection if:

(a) the person conveys, or has in the person’s possession, goods; and

(b) the person intends to export the goods; and

(i) the goods are permanently prohibited goods; or

(ii) the export of the goods is prohibited absolutely by a temporary prohibition determination.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

Person knows that goods are intended to be exported

(5) A person contravenes this subsection if:

(a) the person conveys, or has in the person’s possession, goods; and

(b) the person knows that the goods are intended to be exported; and

(i) the goods are permanently prohibited goods; or

(ii) the export of the goods is prohibited absolutely by a temporary prohibition determination.

Note: The physical elements of an offence against subsection (6) are set out in this subsection (see section 370).

Fault‑based offence

(6) A person commits an offence if the person contravenes subsection (5).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(7) For the purposes of subsection (6), strict liability applies to paragraph (5)(c).

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes subsection (5).

Civil penalty: 960 penalty units.

34 Exporting goods to a temporarily prohibited place—basic contravention

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

35 Exporting goods to a temporarily prohibited place—intention to obtain commercial advantage

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

(d) the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods to that place.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) if the person is a body corporate—the amount under section 50A.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).

Alternative verdict

(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 34(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 34(2); and

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) if the person is an individual—4,000 penalty units; or

(b) if the person is a body corporate—the amount under section 50A.

36 Exporting goods to a temporarily prohibited place—economic consequences for Australia

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

(d) the export of the goods to that place causes, or has the potential to cause, economic consequences for Australia.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) if the person is a body corporate—the amount under section 50A.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).

Alternative verdict

(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 34(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 34(2); and

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) if the person is an individual—4,000 penalty units; or

(b) if the person is a body corporate—the amount under section 50A.

37 Conveying or possessing goods that are intended to be exported to a temporarily prohibited place etc.

Person intends to export goods to temporarily prohibited place

(1) A person contravenes this subsection if:

(a) the person conveys, or has in the person’s possession, goods; and

(b) the person intends to export the goods to a particular place; and

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

Person knows that goods are intended to be exported to temporarily prohibited place

(5) A person contravenes this subsection if:

(a) the person conveys, or has in the person’s possession, goods; and

(b) the person knows that the goods are intended to be exported to a particular place; and

Note: The physical elements of an offence against subsection (6) are set out in this subsection (see section 370).

Fault‑based offence

(6) A person commits an offence if the person contravenes subsection (5).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(7) For the purposes of subsection (6), strict liability applies to paragraph (5)(c).

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes subsection (5).

Civil penalty: 960 penalty units.

38 Exporting prescribed goods—non‑compliance with prescribed export conditions—basic contravention

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the goods are prescribed goods; and

(d) prescribed export conditions were not complied with.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (c) and (d).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

39 Exporting prescribed goods—non‑compliance with prescribed export conditions—intention to obtain commercial advantage

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the goods are prescribed goods; and

(d) prescribed export conditions were not complied with; and

(e) the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) if the person is a body corporate—the amount under section 50A.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (c) and (d).

Alternative verdict

(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38(2); and

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) if the person is an individual—4,000 penalty units; or

(b) if the person is a body corporate—the amount under section 50A.

40 Exporting prescribed goods—non‑compliance with prescribed export conditions—economic consequences for Australia

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the goods are prescribed goods; and

(d) prescribed export conditions were not complied with; and

(e) the export of the goods causes, or has the potential to cause, economic consequences for Australia.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) if the person is a body corporate—the amount under section 50A.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (c) and (d).

Alternative verdict

(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38(2); and

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) if the person is an individual—4,000 penalty units; or

(b) if the person is a body corporate—the amount under section 50A.

41 Conveying or possessing prescribed goods that are intended to be exported in contravention of conditions etc.

Person intends to export goods in contravention of conditions

(1) A person contravenes this subsection if:

(a) the person conveys, or has in the person’s possession, goods; and

(b) the goods are prescribed goods; and

(d) the person intends to export the goods; and

(e) the export of the goods would contravene the prescribed export conditions.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

Civil penalty provision

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

Goods are intended to be exported in contravention of conditions

(4) A person contravenes this subsection if:

(a) the person conveys, or has in the person’s possession, goods; and

(b) the goods are prescribed goods; and

(d) the person knows that the goods are intended to be exported; and

(e) the export of the goods would contravene the prescribed export conditions.

Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 370).

Fault‑based offence

(5) A person commits an offence if the person contravenes subsection (4).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (4).

Civil penalty: 960 penalty units.

42 Exporting prescribed goods to a particular place—non‑compliance with prescribed export conditions—basic contravention

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the goods are prescribed goods; and

(c) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

(d) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

(e) prescribed export conditions were not complied with.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (d) and (e).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

43 Exporting prescribed goods to a particular place—non‑compliance with prescribed export conditions—intention to obtain commercial advantage

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the goods are prescribed goods; and

(c) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

(d) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

(e) prescribed export conditions were not complied with; and

(f) the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods to that place.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) if the person is a body corporate—the amount under section 50A.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (d) and (e).

Alternative verdict

(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 42(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 42(2); and

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) if the person is an individual—4,000 penalty units; or

(b) if the person is a body corporate—the amount under section 50A.

44 Exporting prescribed goods to a particular place—non‑compliance with prescribed export conditions—economic consequences for Australia

(1) A person contravenes this subsection if:

(a) the person exports goods; and

(b) the goods are prescribed goods; and

(c) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

(d) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

(e) prescribed export conditions were not complied with; and

(f) the export of the goods to that place causes, or has the potential to cause, economic consequences for Australia.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) if the person is a body corporate—the amount under section 50A.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (d) and (e).

Alternative verdict

(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 42(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 42(2); and

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) if the person is an individual—4,000 penalty units; or

(b) if the person is a body corporate—the amount under section 50A.

45 Conveying or possessing prescribed goods that are intended to be exported to a particular place in contravention of conditions etc.

Person intends to export goods to prohibited place in contravention of conditions

(1) A person contravenes this subsection if:

(a) the person conveys, or has in the person’s possession, goods; and

(b) the goods are prescribed goods; and

(c) the export of the goods to a particular place is prohibited unless prescribed export conditions are complied with; and

(d) the person intends to export the goods to that place; and

(e) the export of the goods to that place would contravene the prescribed export conditions.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

Civil penalty provision

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

Goods are intended to be exported to prohibited place in contravention of conditions

(4) A person contravenes this subsection if:

(a) the person conveys, or has in the person’s possession, goods; and

(b) the goods are prescribed goods; and

(c) the export of the goods to a particular place is prohibited unless prescribed export conditions are complied with; and

(d) the person knows that the goods are intended to be exported to that place; and

(e) the export of the goods to that place would contravene the prescribed export conditions.

Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 370).

Fault‑based offence

(5) A person commits an offence if the person contravenes subsection (4).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (4).

Civil penalty: 960 penalty units.

46 Producing or preparing prescribed goods or other goods at certain premises in contravention of conditions—general

(1) A person contravenes this subsection if:

(a) the person is:

(i) the occupier of a registered establishment; or

(ii) the manager of an accredited property; or

(iii) the occupier of premises other than a registered establishment or an accredited property; and

(b) goods are produced or prepared at the registered establishment, accredited property or other premises; and

(d) the goods are exported after being produced or prepared at the registered establishment, accredited property or other premises (with or without further preparation); and

(e) the export of the goods is prohibited unless prescribed export conditions are complied with; and

(f) one or more of the prescribed export conditions applies in relation to:

(i) the person; or

(ii) the registered establishment, accredited property or other premises; or

(iii) the production or preparation of the goods at the registered establishment, accredited property or other premises; and

(g) one or more of those prescribed export conditions is contravened.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(c), (e), (f) and (g).

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

47 Producing or preparing prescribed goods or other goods at certain premises in contravention of conditions—goods to be exported to a particular place

(1) A person contravenes this subsection if:

(a) the person is:

(i) the occupier of a registered establishment; or

(ii) the manager of an accredited property; or

(iii) the occupier of premises other than a registered establishment or an accredited property; and

(b) goods are produced or prepared at the registered establishment, accredited property or other premises; and

(d) the goods are exported to a particular place after being produced or prepared at the registered establishment, accredited property or other premises (with or without further preparation); and

(e) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

(f) one or more of the prescribed export conditions applies in relation to:

(i) the person; or

(ii) the registered establishment, accredited property or other premises; or

(iii) the production or preparation of the goods at the registered establishment, accredited property or other premises; and

(g) one or more of those prescribed export conditions is contravened.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(c), (e), (f) and (g).

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

48 Making false or misleading representation about prescribed goods that are entered for export—general

(1) A person contravenes this subsection if:

(a) goods are entered for export by the person; and

(b) the goods are prescribed goods; and

(d) at the time the goods are entered for export:

(i) the person represents (either expressly or by necessary implication) that the prescribed export conditions applicable, at or before that time, in relation to the export of goods have been complied with; and

(ii) the person does so knowing that the representation is false or misleading.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b) and (c).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

49 Making false or misleading representation about prescribed goods that are entered for export to a particular place

(1) A person contravenes this subsection if:

(a) goods are entered for export by the person; and

(b) the goods are prescribed goods; and

(d) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

(e) at the time the goods are entered for export:

(ii) the person does so knowing that the representation is false or misleading.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 480 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b) and (d).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 960 penalty units.

50 Making false or misleading representation about non‑prescribed goods that are entered for export

(1) A person contravenes this subsection if:

(a) goods are entered for export by the person; and

(b) the goods are non‑prescribed goods; and

(i) the person makes a representation (either expressly or by necessary implication) in relation to any matters that are to be stated in a government certificate in relation to the goods (for example that the goods meet an importing country requirement relating to the goods); and

(ii) the person does so knowing that the representation is false or misleading.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 600 penalty units.

50A Penalties for certain contraventions by bodies corporate

(1) This section has effect for the purposes of the following provisions:

(a) subsections 31(2) and (5);

(b) subsections 32(2) and (5);

(d) subsections 36(2) and (5);

(e) subsections 39(2) and (5);

(f) subsections 40(2) and (5);

(g) subsections 43(2) and (5);

(h) subsections 44(2) and (5);

(i) subsections 217(2), (4), (6) and (8).

(2) The amount of the penalty for a contravention by the body corporate (the first body) of a provision referred to in subsection (1) is an amount not more than the greatest of the following:

(a) 20,000 penalty units;

(b) if the first body, and any related body corporate of the first body, has obtained, directly or indirectly, a benefit that is reasonably attributable to the conduct constituting the contravention, and the relevant court can determine the value of that benefit—3 times the value of that benefit;

(c) if the relevant court cannot determine the value of a benefit referred to in paragraph (b) or no such benefit has been obtained—10% of the annual turnover of the first body during the period (the turnover period) of 12 months ending at the end of the month in which the first body committed, or began committing, the contravention.

(3) For the purposes of this section, the annual turnover of the first body, during the turnover period, is the sum of the values of all the supplies that the first body, and any related body corporate of the first body, have made, or are likely to make, during that period, other than the following supplies:

(a) supplies made from the first body to any related body corporate of the first body;

(b) supplies made from any related body corporate of the first body to the first body;

(d) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);

(e) supplies that are not made in connection with an enterprise that the first body carries on.

(4) Expressions used in subsection (3) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.

(5) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001.

Part 2—Exemptions

Division 1—Introduction

51 Simplified outline of this Part

The Secretary may grant an exemption from one or more provisions of this Act in relation to prescribed goods that are to be exported:

(a) as a commercial sample; or

(b) for experimental purposes; or

(d) in special commercial circumstances; or

(e) in other circumstances prescribed by the rules.

The Secretary may also grant an exemption from one or more provisions of this Act in relation to prescribed goods that are to be exported to a particular country if the Secretary is satisfied that it is not necessary for those provisions to be complied with for the purpose of ensuring that importing country requirements relating to the goods are met.

An exemption may be granted subject to conditions which may be varied. An exemption must not be varied.

An exemption may be revoked.

52 Application of this Part

(1) This Part applies in relation to a kind of prescribed goods (in this Part called relevant goods) that are to be exported:

(a) as a commercial sample; or

(b) for experimental purposes; or

(d) in special commercial circumstances; or

(e) in other circumstances prescribed by the rules.

(2) For the purposes of subsection (1), the rules may prescribe the meaning of any of the following terms:

(a) commercial sample;

(b) experimental purposes;

(d) special commercial circumstances.

(3) This Part also applies to a kind of prescribed goods (in this Part also called relevant goods) that are to be exported to a particular country (the importing country) if the Secretary is satisfied that it is not necessary for one or more of the provisions of this Act to be complied with for the purpose of ensuring that importing country requirements relating to the goods are met.

Division 2—Exemptions

53 Application for exemption

(1) An application for an exemption from one or more provisions of this Act in relation to relevant goods may be made to the Secretary by any of the following:

(a) a person who wishes to export relevant goods;

(b) the manager of an accredited property where export operations in relation to relevant goods are or will be carried out;

(c) the occupier of a registered establishment where export operations in relation to relevant goods are or will be carried out;

(d) the holder of an approved arrangement that covers export operations in relation to relevant goods;

(e) the holder of an export licence that covers export operations in relation to relevant goods.

Note: The reference to this Act includes a reference to instruments made under this Act (see the definition of this Act in section 12).

(2) However, an application for an exemption must not be made in relation to:

(a) goods that are permanently prohibited goods; or

(b) goods the export of which is prohibited by a temporary prohibition determination.

(3) An application for an exemption must:

(a) if the Secretary has approved, in writing, a manner for making an application—be made in an approved manner; and

(b) if the Secretary has approved a form for making an application:

(i) include the information required by the form; and

(ii) be accompanied by any documents required by the form; and

(d) include the information (if any) prescribed by the rules; and

(e) be accompanied by any documents prescribed by the rules; and

(f) be made:

(i) within the period prescribed by the rules; or

(ii) if the Secretary allows a different period—within that period.

Note: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).

(4) The Secretary may accept any information or document previously given to the Secretary in connection with an application made under this Act, or a notice of intention to export a consignment of prescribed goods given under this Act, as satisfying any requirement to give that information or document under subsection (3).

(5) An application is taken not to have been made if the application does not comply with the requirements referred to in subsection (3) for the application.

54 Secretary must decide whether to grant exemption

Secretary must decide whether to grant exemption

(1) On receiving an application made under section 53 for an exemption, the Secretary must decide:

(a) to grant the exemption; or

(b) to refuse to grant the exemption.

Note: An application that does not comply with the requirements referred to in subsection 53(3) for the application is taken not to have been made (see subsection 53(5)).

Secretary may request further information or documents

(2) The Secretary may, in writing, request the applicant to give the Secretary further specified information or documents relevant to the application.

Grounds for granting exemption

(3) The Secretary may grant the exemption if the Secretary is satisfied, having regard to any matter prescribed by the rules or any other matter that the Secretary considers relevant, that:

(a) any requirements prescribed by the rules are met; and

(b) it is appropriate to grant the exemption.

Note: An exemption must not be varied (see subsection 58(1)).

55 Exemption may be granted subject to conditions

(1) The Secretary may grant an exemption under paragraph 54(1)(a) in relation to relevant goods, subject to any conditions that the Secretary considers are necessary.

Note: Conditions of an exemption may be varied (see section 58).

(2) In considering whether it is necessary to impose conditions on an exemption, the Secretary must have regard to the matters prescribed by the rules.

Fault‑based offence

(3) A person commits an offence if:

(a) the person is the holder of an exemption in force under this Part; and

(b) the person engages in conduct; and

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

(4) A person is liable to a civil penalty if:

(a) the person is the holder of an exemption in force under this Part; and

(b) the person contravenes a condition of the exemption.

Civil penalty: 600 penalty units.

56 Notice of decision

Instrument of exemption

(1) If the Secretary decides to grant an exemption under paragraph 54(1)(a) in relation to relevant goods, the Secretary must give the applicant for the exemption an instrument of exemption stating the following:

(a) the kind of goods covered by the exemption;

(b) if applicable, each importing country covered by the exemption;

(d) the provisions of this Act covered by the exemption;

(e) the date (which must not be retrospective) when the exemption takes effect;

(f) the period during which the exemption remains in force (as prescribed by rules made for the purposes of paragraph 57(b));

(g) any conditions of the exemption;

(h) any other information prescribed by the rules.

(2) An instrument of exemption given under subsection (1) is not a legislative instrument.

Notice of refusal

(3) If the Secretary decides to refuse to grant an exemption under paragraph 54(1)(b), the Secretary must notify the applicant, in writing, of the decision. The notice must include the reasons for the decision.

57 Period of effect of exemption

An exemption granted under paragraph 54(1)(a):

(a) takes effect on the date stated in the instrument of exemption under paragraph 56(1)(e); and

(b) remains in force as prescribed by the rules unless it is revoked under section 59.

58 Variation of conditions of exemption

(1) Except as provided by subsection (2), an exemption that is in force under this Part must not be varied.

Note: If changes to an exemption are needed, an application for a new exemption must be made.

(2) If the Secretary considers it necessary to do so, the Secretary may vary the conditions of an exemption that is in force under this Part (including by imposing new conditions).

(3) In considering whether it is necessary to vary the conditions of an exemption, the Secretary must have regard to the matters prescribed by the rules.

(4) If the Secretary varies the conditions of an exemption, the Secretary must give the holder of the exemption a written notice stating the following:

(a) the varied conditions and any new conditions;

(b) the reason for varying the conditions;

(d) any other information prescribed by the rules.

59 Revocation of exemption

(1) The Secretary may revoke an exemption that is in force under this Part.

(2) In considering whether to revoke an exemption, the Secretary must have regard to the matters prescribed by the rules.

(3) If the Secretary decides to revoke an exemption, the Secretary must give the holder of the exemption a written notice stating the following:

(a) that the exemption is to be revoked;

(b) the reasons for the revocation;

60 Effect of exemption

If an exemption from one or more provisions of this Act (the exempted provisions) is in force under this Part in relation to relevant goods, the exempted provisions do not apply in relation to the export of the goods.

Part 3—Government certificates

Division 1—Introduction

61 Simplified outline of this Part

The rules may make provision for and in relation to the issue of government certificates in relation to prescribed goods and non‑prescribed goods that are to be, or that have been, exported.

In deciding whether to make rules in relation to goods that are not animals, plants or food, the Secretary may have regard to relevant matters, including importing country requirements, sanitary matters, Australian laws and standards, Australia’s international rights and obligations and international standards.

A person may apply to an issuing body for the issue of a government certificate in relation to goods that are to be, or that have been, exported. The issuing body is a person or body prescribed by the rules in relation to the goods or, if no person or body is prescribed in relation to the goods, the issuing body is the Secretary.

The issuing body must decide whether to issue a government certificate. The Secretary may exercise certain powers in relation to an application for a government certificate.

Certain issuing bodies may charge a fee in relation to things done in the performance of the issuing body’s functions or the exercise of the issuing body’s powers under this Act.

A government certificate may be issued electronically or in another form that is acceptable to the relevant importing country.

A government certificate has effect for a particular period.

A government certificate may be revoked and may be required to be returned.

Division 2—Rule‑making powers

62 Rules may make provision for and in relation to government certificates

(1) The rules may make provision for and in relation to the issue of government certificates in relation to goods that are to be, or that have been, exported.

(2) Without limiting subsection (1), the rules:

(a) may specify:

(i) kinds of goods in relation to which a government certificate may be issued; and

(ii) kinds of goods in relation to which a government certificate must not be issued; and

(iii) kinds of government certificates that may be issued in relation to specified kinds of goods; and

(b) may make provision for and in relation to any of the following:

(i) applications for a government certificate in relation to a kind of goods;

(ii) the matters that may be stated in a government certificate in relation to a kind of goods;

(iii) requirements that must be complied with in relation to a kind of goods before a government certificate in relation to goods of that kind may be issued.

(3) In deciding whether to make rules for the purposes of subparagraph (2)(a)(i) specifying a kind of non‑prescribed goods referred to in paragraph (d) of the definition of goods in section 12, the Secretary may have regard to the following matters:

(a) any importing country requirements relating to goods of that kind;

(b) sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to goods of that kind;

(d) Australia’s rights and obligations relating to goods of that kind under any international agreements to which Australia is a party;

(e) any international standards relating to goods of that kind;

(f) any other matter the Secretary considers relevant.

63 Issuing bodies

(1) The issuing body for a government certificate in relation to a kind of goods that are to be, or that have been, exported is:

(a) a person or body prescribed by the rules in relation to goods of that kind; or

(b) if no person or body is prescribed by the rules in relation to goods of that kind—the Secretary.

(2) For the purposes of subsection (1), the rules may provide that one or more of the following is an issuing body for a government certificate in relation to a kind of goods that are to be, or that have been, exported:

(a) the Secretary;

(b) a person or body that is covered by an approved arrangement that provides for the person or body to issue government certificates in relation to goods of that kind;

64 Certain issuing bodies may charge fees

(1) An issuing body for a government certificate may charge a fee under this section in relation to things done in the performance of the issuing body’s functions or the exercise of the issuing body’s powers under this Act.

(2) A fee must not be such as to amount to taxation.

(3) This section does not apply in relation to the Secretary.

Note: Section 399 provides for fees to be charged in relation to the performance of functions or the exercise of powers by the Secretary as an issuing body.

Division 3—Issue of government certificate

65 Application for government certificate

(1) A person may apply to an issuing body for a government certificate in relation to a kind of goods that are to be, or that have been, exported.

(2) An application for a government certificate must:

(a) if the Secretary has approved, in writing, a manner for making an application—be made in an approved manner; and

(b) if the Secretary has approved a form for making an application:

(i) include the information required by the form; and

(ii) be accompanied by any documents required by the form; and

(d) be accompanied by any documents prescribed by the rules.

Note 1: The Secretary may approve a single form that may be used to apply for an export permit for a kind of prescribed goods and a government certificate in relation to the goods (see subsection 239(4)).

Note 2: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).

(3) The issuing body may accept any information or document previously given to an issuing body in connection with an application made under this Act, or a notice of intention to export a consignment of goods given under this Act, as satisfying any requirement to give that information or document under subsection (2).

(4) An application is taken not to have been made if the application does not comply with the requirements referred to in subsection (2) for the application.

66 Additional or corrected information

(1) A person who has made an application to an issuing body under section 65 must comply with subsection (2) of this section if:

(a) the person becomes aware that information included in the application, or information or a document given to the issuing body in relation to the application, was incomplete or incorrect; or

(b) a change prescribed by the rules occurs.

(2) The person must, as soon as practicable, give the issuing body additional or corrected information, to the extent that it is relevant to the issuing body’s consideration of the application.

Note 1: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).

Note 2: This section is not subject to the privilege against self‑incrimination (see section 426).

Civil penalty provision

(3) A person is liable to a civil penalty if:

(a) the person is required to give information to the issuing body under subsection (2); and

(b) the person fails to comply with the requirement.

Civil penalty: 60 penalty units.

67 Issuing body must decide whether to issue government certificate

(1) On receiving an application made under section 65 for a government certificate in relation to a kind of goods, the issuing body must decide:

(a) to issue the certificate; or

(b) to refuse to issue the certificate.

Note 1: An application that does not comply with the requirements referred to in subsection 65(2) for the application is taken not to have been made (see subsection 65(4)).

Note 2: A decision in relation to the application may be made by the operation of a computer program (see section 286).

(2) The issuing body may, in writing, request the applicant to give the issuing body further specified information or documents relevant to the application.

Note: If the issuing body is the Secretary, the Secretary may also exercise powers under section 68.

Grounds for refusing to issue government certificate

(3) The issuing body may refuse to issue a government certificate in relation to the goods if:

(a) the issuing body is not satisfied, having regard to any matter that the issuing body considers relevant, that:

(i) the requirements of this Act in relation to the export of the goods have been complied with, or will be complied with before the goods are imported into the importing country; or

(ii) any importing country requirements relating to the goods have been met, or will be met before the goods are imported into the importing country; or

(iii) the matters to be stated in the government certificate in relation to the goods are true and correct; or

(b) the issuing body reasonably believes that the applicant:

(i) made a false, misleading or incomplete statement in the application for the certificate; or

(ii) gave false, misleading or incomplete information or documents to the issuing body or to another person performing functions or exercising powers under this Act; or

(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law; or

(c) any information or documents requested under subsection (2) are not given to the issuing body within a reasonable period after the request was made; or

(d) the applicant refused to consent to a request by a person to enter premises of the applicant:

(i) to conduct an audit of export operations carried out in relation to the goods under Part 1 of Chapter 9; or

(ii) to carry out an assessment of the goods under Part 2 of that Chapter; or

(e) the applicant refused to cooperate with a request made by the issuing body, or any other person performing functions or exercising powers under this Act, in relation to the goods; or

(f) the issuing body reasonably believes that the applicant has contravened a requirement of this Act in relation to the goods; or

(g) circumstances prescribed by the rules exist.

Notice of refusal

(4) If the issuing body decides not to issue a government certificate in relation to the goods, the issuing body must notify the applicant, in writing, of the decision.

68 Powers of Secretary in relation to application

If an application for a government certificate in relation to a kind of goods is made to the Secretary under section 65, the Secretary may do anything the Secretary considers necessary in relation to the application, including the following:

(a) request, in writing, the applicant, or another person who the Secretary considers may have information or documents relevant to the application, to give the Secretary further specified information or documents relevant to the application;

(b) require an audit of export operations carried out in relation to the goods to be conducted under Part 1 of Chapter 9;

(d) request the applicant to give the Secretary a written statement, signed and dated by the applicant, verifying that:

(i) the requirements of this Act in relation to the export of the goods have been complied with, or will be complied with before the goods are imported into the importing country; and

(ii) any importing country requirements relating to the goods have been met, or will be met before the goods are imported into the importing country; and

(iii) the matters to be stated in the certificate are true and correct;

(e) take, test or analyse samples of goods, or from equipment or other things, that are relevant to the application;

(f) arrange for another person with appropriate qualifications or expertise to take, test or analyse samples of goods, or from equipment or other things, that are relevant to the application;

(g) any other thing prescribed by the rules.

Note 1: See Division 2 of Part 6 of Chapter 11 in relation to taking, testing and analysing samples.

Note 2: An audit of export operations carried out in relation to a kind of non‑prescribed goods by a person to whom a government certificate has been issued may be conducted at any time during the period of 18 months after the certificate was issued (see subsection 266(4)).

69 Applications in relation to certain kinds of non‑prescribed goods

(1) This section applies in relation to an application to the Secretary for a government certificate that relates to a kind of goods (the relevant goods) referred to in paragraph (d) of the definition of goods in section 12 that:

(a) are non‑prescribed goods; and

(b) are not specified by rules made for the purposes of subparagraph 62(2)(a)(i) or (ii).

(2) For the purposes of making a decision in relation to the application, the Secretary may have regard to the following matters (in addition to the matters referred to in subsection 67(3)):

(a) sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to the relevant goods;

(b) any Australian laws and standards relating to the relevant goods;

(c) Australia’s rights and obligations relating to the relevant goods under any international agreements to which Australia is a party;

(d) any international standards relating to the relevant goods;

(e) any other matter the Secretary considers relevant.

(3) However, the Secretary need not have regard to the matters referred to in subsection (2) if:

(a) goods of the same kind as the relevant goods have previously been exported to a country; and

(b) the Secretary has previously issued a government certificate in relation to goods of that kind that have been exported to that country.

70 Government certificate for goods that are to be, or that have been, exported from certain external Territories

If:

(a) this Part extends to an external Territory or an area adjacent to that external Territory under subsection 8(2); and

(b) a government certificate is issued in relation to a kind of goods that are to be, or that have been, exported from that Territory or area;

the certificate may state that the goods are from that Territory.

71 Manner of issuing government certificate

A government certificate in relation to a kind of goods may be issued:

(a) electronically; or

(b) in another form acceptable to the country to which the goods are to be, or have been, exported.

72 Period of effect of government certificate

(1) A government certificate in relation to a kind of goods takes effect:

(a) on the date it is issued; or

(b) if a later date is stated in the certificate—on that later date.

(2) A government certificate that relates to a single consignment of goods remains in force until the earlier of the following:

(a) any expiry date specified in the certificate;

(b) the day the certificate is accepted, or rejected, by the importing country.

(3) A government certificate that relates to 2 or more consignments of goods remains in force until the earliest of the following:

(a) any expiry date specified in the certificate;

(b) the day any consignment of the goods is rejected by the importing country;

(4) Despite subsections (2) and (3), a government certificate in relation to a kind of goods ceases to be in force if:

(a) the goods are no longer intended to be exported to the country in relation to which the certificate was issued; or

(b) the certificate is revoked; or

Division 4—Other matters

73 Secretary may require assessment of goods

(1) This section applies if a government certificate is in force in relation to a kind of non‑prescribed goods.

(2) The Secretary may require an assessment of the goods to be carried out under Part 2 of Chapter 9 if the Secretary reasonably believes that:

(a) the requirements of this Act have not been complied with, or are not likely to be complied with before the goods are imported into the importing country; or

(b) an importing country requirement relating to the goods will not be, or is not likely to be, met before the goods are imported into the importing country; or

(d) circumstances prescribed by the rules exist.

74 Additional or corrected information in relation to application for government certificate etc.

(1) The holder of a government certificate in relation to a kind of goods must comply with subsection (2) if:

(a) the holder becomes aware that information included in the application for the certificate made by the holder, or information or a document given to the issuing body in relation to such an application, was incomplete or incorrect; or

(b) a change prescribed by the rules occurs.

(2) The holder of the government certificate must, as soon as practicable, give the issuing body additional or corrected information, to the extent that it is relevant to assessing whether:

(a) the requirements of this Act in relation to the export of the goods in relation to which the certificate was issued have been complied with, or will be complied with before the goods are imported into the importing country; or

(b) the importing country requirements relating to the goods in relation to which the certificate was issued have been met, or will be met before the goods are imported into the importing country; or

Note 2: This section is not subject to the privilege against self‑incrimination (see section 426).

Civil penalty provision

(3) A person is liable to a civil penalty if:

(a) the person is required to give information to the issuing body under subsection (2); and

(b) the person fails to comply with the requirement.

Civil penalty: 60 penalty units.

75 Revocation of government certificate

(1) The issuing body that issued a government certificate in relation to a kind of goods, or the Secretary, may revoke the certificate if the issuing body or the Secretary (as the case may be) reasonably believes any of the following:

(a) information specified in the certificate is incorrect;

(b) this Act has not been, is not being or will not be complied with in relation to the goods;

(d) the integrity of the goods cannot be ensured;

(e) the holder of the certificate has engaged in conduct that:

(i) intimidated a person performing functions or exercising powers under this Act; or

(ii) hindered or prevented a person from performing functions or exercising powers under this Act;

(f) the holder of the certificate:

(i) made a false, misleading or incomplete statement in the application for the certificate; or

(ii) gave false, misleading or incomplete information or documents to the issuing body or to another person performing functions or exercising powers under this Act; or

(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;

(g) the certificate has not, or is not being, kept securely as required by rules made for the purposes of section 408;

(h) circumstances prescribed by the rules exist.

Note: A government certificate that has been issued in relation to a kind of goods is taken to have been revoked if a temporary prohibition determination applies in relation to the goods (see subsection 26(1)).

(2) If a government certificate is revoked by the issuing body or the Secretary under subsection (1), the issuing body or the Secretary must notify the holder of the certificate, in writing, of the revocation.

76 Return of government certificate

(1) The rules may require a person who is in possession of a government certificate that was issued to the person to return the certificate to the issuing body that issued the certificate:

(a) in the circumstances prescribed by the rules; and

(b) at the time, or within the period, prescribed by the rules.

Civil penalty provision

(2) A person is liable to a civil penalty if:

(a) the person is required to return a government certificate to an issuing body under rules made for the purposes of subsection (1); and

(b) the person fails to comply with the requirement.

Civil penalty: 60 penalty units.

Chapter 3—Accredited properties

Part 1—Introduction

77 Simplified outline of this Chapter

The Secretary may, on application by the manager of a property, accredit the property for a kind of export operations in relation to a kind of prescribed goods.

A property may be accredited for more than one kind of export operations in relation to more than one kind of prescribed goods for export to one or more places.

The accreditation of a property is subject to certain conditions.

The accreditation of a property may remain in force indefinitely or may cease to be in force on an expiry date.

If there is an expiry date for the accreditation of a property, the accreditation may be renewed.

The matters covered by the accreditation of a property or the conditions of the accreditation may be varied.

The accreditation of a property may be suspended wholly or in part, and may be revoked.

A show cause notice must be given to the manager of an accredited property before the accreditation may be varied, suspended or revoked (except in serious and urgent cases or if the manager has requested the variation, suspension or revocation).

The manager of an accredited property must comply with certain obligations.

Part 2—Application for accreditation

78 Application for accreditation of property

(1) The manager of a property may apply to the Secretary to accredit the property for a kind of export operations in relation to a kind of prescribed goods.

(2) An application:

(a) may relate to more than one kind of export operations and more than one kind of prescribed goods; and

(b) may, but is not required to, specify one or more places to which the goods are to be exported.

Note 1: The export of a kind of prescribed goods may be prohibited unless export operations in relation to the goods have been carried out at an accredited property (see section 29 and rules made for the purposes of that section).

Note 2: Section 377 sets out requirements for applications.

79 Secretary must decide whether to accredit property

(1) On receiving an application under section 78 to accredit a property, the Secretary must decide:

(a) to accredit the property; or

(b) to refuse to accredit the property.

Note 1: See section 379 for matters relating to dealing with applications.

Note 2: If the application is to accredit the property for more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to accredit the property for some or all of those kinds of export operations in relation to some or all of those kinds of goods for export to some or all of those places.

Note 3: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).

Note 4: A decision to refuse to accredit a property for a kind of export operations in relation to a kind of prescribed goods is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).

(2) The Secretary may accredit the property for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a specified place to which the goods may be exported if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that the following requirements are met:

(a) either:

(i) all relevant Commonwealth liabilities of the manager of the property, or relating to the property, have been paid or are taken to have been paid; or

(ii) if one or more relevant Commonwealth liabilities of the manager, or relating to the property, have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;

(b) any other requirements prescribed by the rules.

Note: For the purposes of paragraph (a), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).

(3) Without limiting paragraph (2)(b), the rules may prescribe requirements in relation to any or all of the following:

(a) the manager of a property;

(b) the kind of property;

(d) a kind of prescribed goods;

(e) importing country requirements relating to a kind of export operations or a kind of prescribed goods.

(4) If the Secretary accredits the property, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the accreditation.

Note 1: If there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked (see subsection 82(1)).

Note 2: A decision to set an expiry date for the accreditation of a property is a reviewable decision (see Part 2 of Chapter 11).

(5) The Secretary may set an expiry date for the accreditation of the property under subsection (4) even if rules made for the purposes of subsection 82(5) apply in relation to the accreditation.

80 Conditions of accreditation

(1) If the Secretary accredits a property for a kind of export operations in relation to a kind of prescribed goods, the accreditation is subject to:

(a) the conditions provided by this Act; and

(b) the conditions prescribed by the rules (other than any of those conditions that the Secretary decides are not to be conditions of the accreditation); and

(c) any additional conditions that the Secretary considers appropriate and that are specified in the notice given to the applicant under section 81.

Note 1: The manager of an accredited property may commit an offence or be liable to a civil penalty if a condition of the accreditation is contravened (see section 106).

Note 2: The accreditation of a property may be suspended or revoked if a condition of the accreditation is contravened (see sections 94 and 102).

Note 3: A decision to accredit a property subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).

Note 4: Part 7 sets out additional obligations of the manager of an accredited property.

(2) Without limiting paragraph (1)(b), the rules may prescribe conditions in relation to any or all of the following:

(a) the manager of a property;

(b) the kind of property;

(d) a kind of prescribed goods;

(e) importing country requirements relating to a kind of export operations or a kind of prescribed goods.

(3) For the purposes of this Act, conditions to which the accreditation of a property is subject under subsection (1) or section 85 are conditions of the accreditation.

81 Notice of decision

If the Secretary accredits a property, the Secretary must give the applicant a written notice stating the following information:

(a) the accreditation number allocated to the property;

(b) each kind of export operations and each kind of prescribed goods covered by the accreditation;

(d) the date the accreditation takes effect;

(e) that the accreditation remains in force indefinitely or the expiry date for the accreditation;

(f) any conditions prescribed by the rules that the Secretary has decided are not to be conditions of the accreditation;

(g) any additional conditions of the accreditation;

(h) the name of the manager of the property;

(i) any other information prescribed by the rules.

82 Period of effect of accreditation

Accreditations that have no expiry date

(1) If there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked under Part 6 or under rules made for the purposes of subsection 109(3).

Accreditations that have an expiry date

(2) If there is an expiry date for the accreditation of a property (including an accreditation that has been renewed under Part 3), the accreditation remains in force until the end of that expiry date unless:

(a) the accreditation is renewed under Part 3 on or before that date; or

(b) the accreditation is revoked under Part 6 or under rules made for the purposes of subsection 109(3) on or before that date.

(3) There is an expiry date for the accreditation of a property if:

(a) rules made for the purposes of subsection (5) apply in relation to the accreditation; or

(b) an expiry date for the accreditation set under subsection 79(4) or 84(3) or paragraph 90(1)(c) or (d) is in force in relation to the accreditation.

(4) The expiry date for the accreditation of a property is:

(a) if rules made for the purposes of subsection (5) apply in relation to the accreditation and no expiry date set under subsection 79(4) or 84(3) or paragraph 90(1)(c) or (d) is in force in relation to the accreditation—the last day of the period prescribed by the rules; or

(b) if an expiry date for the accreditation set under subsection 79(4) or 84(3) or paragraph 90(1)(c) or (d) is in force in relation to the accreditation—that date.

Rules may prescribe period of effect of accreditation

(5) The rules may prescribe the period during which the accreditation of a property remains in force. The rules may apply in relation to:

(a) accreditations of properties generally; or

(b) accreditations of properties for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a place to which the goods may be exported.

Part 3—Renewal of accreditation

83 Application to renew accreditation of property

(1) This section applies in relation to an accredited property (including a property in relation to which a suspension is in effect under Part 5) if there is an expiry date for the accreditation.

Note: See subsections 82(3) and (4) in relation to the expiry date for the accreditation of a property.

(2) The manager of the property may apply to the Secretary to renew the accreditation of the property.

Note: Section 377 sets out requirements for applications.

(3) An application for renewal:

(a) may relate to more than one kind of export operations and more than one kind of prescribed goods; and

(b) may, but is not required to, specify one or more places to which the goods are to be exported.

(4) An application for renewal must be made:

(a) within the period prescribed by the rules; or

(b) if the Secretary allows a longer period—within that longer period.

(5) If an application to renew the accreditation of a property is made after the period applying under subsection (4):

(a) the application is taken to be an application to accredit the property; and

(b) Part 2 applies in relation to the application; and

84 Secretary must decide whether to renew accreditation

(1) On receiving an application under section 83 to renew the accreditation of a property, the Secretary must decide:

(a) to renew the accreditation; or

(b) to refuse to renew the accreditation.

Note 1: See section 379 for matters relating to dealing with applications.

Note 2: If the application is to renew the accreditation of the property for more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to renew the accreditation for some or all of those kinds of export operations in relation to some or all of those kinds of goods for export to some or all of those places.

Note 4: A decision to refuse to renew the accreditation of the property for a kind of export operations in relation to a kind of prescribed goods is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).

(2) The Secretary may refuse to renew the accreditation of the property for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a specified place to which the goods may be exported if the Secretary is not satisfied, having regard to any matter that the Secretary considers relevant, of one or more of the following:

(a) the requirements prescribed by rules made for the purposes of paragraph 79(2)(b) are continuing to be met;

(b) either:

(i) all relevant Commonwealth liabilities of the manager of the property, or relating to the property, have been paid or are taken to have been paid; or

(d) the conditions of the accreditation have been, and are being, complied with;

(e) any other requirement prescribed by the rules is being, or has been, met.

Note: For the purposes of paragraph (b), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).

(3) If the Secretary renews the accreditation of the property, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the accreditation.

Note 1: If there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked (see subsection 82(1)).

Note 2: A decision to set an expiry date for the renewed accreditation of a property is a reviewable decision (see Part 2 of Chapter 11).

(4) The Secretary may set an expiry date for the accreditation of the property under subsection (3) even if rules made for the purposes of subsection 82(5) apply in relation the accreditation.

85 Conditions of renewed accreditation

If the Secretary renews the accreditation of a property, the accreditation is subject to:

(a) the conditions provided by this Act; and

(b) the conditions prescribed by the rules (other than any of those conditions that the Secretary decides are not to be conditions of the accreditation); and

(c) any additional conditions that the Secretary considers appropriate and that are specified in the notice given to the applicant under section 86.

Note 1: The manager of an accredited property may commit an offence or be liable to a civil penalty if a condition of the accreditation is contravened (see section 106).

Note 2: The accreditation of a property may be suspended or revoked if a condition of the accreditation is contravened (see sections 94 and 102).

Note 3: A decision to renew the accreditation of a property subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).

Note 4: Part 7 sets out additional obligations of the manager of an accredited property.

86 Notice of decision

If the accreditation of a property is renewed, the Secretary must give the applicant a written notice stating the information referred to in section 81.

Part 4—Variation of accreditation

Division 1—Application by manager

87 Application by manager for variation of accreditation or approval of alteration of property

(1) The manager of an accredited property may apply to the Secretary:

(a) to vary the accreditation in relation to any of the following matters (including by adding or removing any of those matters):

(i) kinds of export operations;

(ii) kinds of prescribed goods;

(iii) if applicable, places to which goods may be exported; or

(b) to approve a variation of the accreditation so that it covers:

(i) an alteration of the property, being an alteration of a kind prescribed by the rules; or

(ii) the carrying out of export operations on an additional part of the property, or on another property, in the circumstances prescribed by the rules; or

(d) to vary the particulars relating to the accreditation to make a minor change to a matter (including to correct a minor or technical error); or

(e) to vary any other aspect of the accreditation.

Example: For the purposes of paragraph (e), a variation may be needed to change the name of a person who manages or controls, or will manage or control, export operations covered by the accreditation.

Note: Section 377 sets out requirements for applications. A single application may be made to make or approve a variation in relation to the accreditation of a property and to renew the accreditation of the property.

(2) If the Secretary receives an application under subsection (1) to make a variation or give an approval, the Secretary must decide:

(a) to make the variation or give the approval; or

(b) to refuse to make the variation or give the approval.

Note 1: See section 379 for matters relating to dealing with applications.

Note 2: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).

Note 3: A decision to refuse the application is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).

(3) The Secretary may make the variation, or give the approval, if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that, if the variation were made or the approval were given:

(a) the requirements prescribed by rules made for the purposes of paragraph 79(2)(b) would continue to be met; and

(b) any other requirement prescribed by the rules would be met.

88 Notice of variation or approval of alteration

(1) If the Secretary makes a variation or gives an approval in relation to the accreditation of a property under paragraph 87(2)(a), the Secretary must give the manager of the property written notice of the variation or approval.

(2) The notice must state the following:

(a) details of the variation or approval;

(b) if the variation is of the conditions of the accreditation—the varied conditions;

(d) any other information prescribed by the rules.

Note: The accreditation, as varied, remains in force as provided by section 82.

89 Certain variations must not be made unless approved

Prescribed alteration of property

(1) The manager of an accredited property must not make an alteration of the property that is of a kind prescribed by rules made for the purposes of subparagraph 87(1)(b)(i) unless:

(a) the alteration has been approved under subsection 87(2); and

(b) the Secretary has given the manager notice of the approval under section 88.

Note: The Secretary may suspend or revoke the accreditation of the property if the manager contravenes this subsection (see paragraphs 94(1)(g) and 102(1)(g)).

Carrying out export operations on additional part of property

(2) The manager of an accredited property must not carry out export operations in relation to a kind of prescribed goods on an additional part of the property, or on another property, in the circumstances prescribed by rules made for the purposes of subparagraph 87(1)(b)(ii) unless:

(a) the carrying out of those export operations on the additional part of the property, or on the other property, has been approved under subsection 87(2); and

(b) the Secretary has given the manager notice of the approval under section 88.

Note: The Secretary may suspend or revoke the accreditation of the property if the manager contravenes this subsection (see paragraphs 94(1)(g) and 102(1)(g)).

Division 2—Variation by Secretary

90 Secretary may make variations in relation to accreditation

(1) The Secretary may do any of the following in relation to the accreditation of a property:

(a) vary any aspect of the accreditation, including so that it does not cover:

(i) a kind of export operations; or

(ii) a kind of prescribed goods; or

(iii) if applicable, a place to which goods may be exported;

(b) vary the conditions of the accreditation (including by imposing new conditions);

(c) if there is no expiry date for the accreditation—vary the accreditation by setting an expiry date for the accreditation;

(d) if there is an expiry date for the accreditation (whether under paragraph 82(4)(a) or (b))—vary the accreditation by setting a different expiry date for the accreditation;

(e) if there is an expiry date for the accreditation under paragraph 82(4)(b)—vary the accreditation by revoking that expiry date.

Note 1: If the Secretary revokes the expiry date for the accreditation under paragraph (e), the accreditation will remain in force:

(a) if rules made for the purposes of subsection 82(5) apply in relation to the accreditation—for the period prescribed by the rules; or

(b) if there are no such rules—indefinitely (unless it is revoked).

Note 2: Certain decisions under subsection (1) are reviewable decisions (see Part 2 of Chapter 11).

(2) The Secretary may make a variation in relation to the accreditation of a property under paragraph (1)(a), (b) or (c), or set an earlier expiry date for the accreditation under paragraph (1)(d), only if the Secretary reasonably believes that:

(a) the requirements prescribed by rules made for the purposes of paragraph 79(2)(b) are no longer being met; or

(b) a condition of the accreditation has been, or is being, contravened; or

(i) to take account of an event notified under section 108; or

(ii) to correct a minor or technical error; or

(d) the accreditation needs to be varied for any other reason prescribed by the rules.

Notice of certain proposed variations

(3) The Secretary must not make a variation in relation to the accreditation of a property under paragraph (1)(a), (b) or (c), or set an earlier expiry date for the accreditation under paragraph (1)(d), unless the Secretary has given a written notice to the manager of the property in accordance with subsection (4).

(4) A notice under subsection (3) must:

(a) specify each proposed variation; and

(b) specify the grounds for each proposed variation; and

(c) subject to subsection (5), request the manager of the property to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed variation should not be made; and

(d) include a statement setting out the manager’s right to seek review of a decision to make the proposed variation.

(5) A notice under subsection (3) is not required to include the request referred to in paragraph (4)(c) if the Secretary reasonably believes that the grounds for the proposed variation are serious and urgent.

91 Notice of variation

(1) If the Secretary makes a variation in relation to the accreditation of a property under subsection 90(1), the Secretary must give the manager of the property written notice of the variation.

(2) The notice must state the following:

(a) details of the variation;

(b) if the variation is of the conditions of the accreditation—the varied conditions and any new conditions;

(i) the expiry date for the accreditation under paragraph 82(4)(a) or (b) (whichever applies); or

(ii) if there is no expiry date for the accreditation—that the accreditation remains in force unless it is revoked;

(d) the date the variation takes effect;

(e) any other information prescribed by the rules.

(3) If the manager was given a notice (a show cause notice) under subsection 90(3) that included the request referred to in paragraph 90(4)(c), the variation must not take effect before the earlier of the following:

(a) the day after any response to the request is received by the Secretary;

(b) the end of 14 days after the show cause notice was given.

Note: The accreditation, as varied, remains in force as provided by section 82.

Part 5—Suspension of accreditation

Division 1—Suspension requested by manager

92 Manager may request suspension

(1) Subject to subsection (2), the manager of an accredited property may request the Secretary to suspend the accreditation of the property in relation to a kind of export operations and a kind of prescribed goods and, if applicable, a place to which goods may be exported.

(2) A request may be made under subsection (1) only in the circumstances prescribed by the rules.

(3) A request under subsection (1) may relate to more than one kind of export operations or more than one kind of prescribed goods and, if applicable, more than one place.

(4) A request under subsection (1) must:

(a) be in writing; and

(b) state each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the accreditation is to be suspended; and

(d) include any other information prescribed by the rules.

(5) If the Secretary receives a request from the manager of an accredited property under subsection (1), the Secretary must, by written notice to the manager, suspend the accreditation as requested, with effect on the day specified in the notice.

93 Request to revoke suspension

(1) If the accreditation of a property is suspended under section 92, the manager of the property may request the Secretary to revoke the suspension.

(2) A request under subsection (1) must:

(a) be in writing; and

(b) state the reason for the request; and

(3) If the Secretary receives a request from the manager of an accredited property under subsection (1), the Secretary may:

(a) if the Secretary is satisfied that the reason for the suspension no longer exists and there is no reason why the suspension should not be revoked—revoke the suspension by written notice to the manager; or

(b) in any other case:

(i) suspend the accreditation of the property under Division 2 of this Part; or

(ii) revoke the accreditation of the property under Division 2 of Part 6.

Note: A decision to suspend or revoke the accreditation of the property is a reviewable decision (see Part 2 of Chapter 11).

Division 2—Suspension by Secretary

94 Grounds for suspension—general

(1) The Secretary may suspend the accreditation of a property in relation to one or more kinds of export operations and one or more kinds of prescribed goods and, if applicable, one or more places to which goods may be exported if the Secretary reasonably believes any of the following:

(a) the integrity of a kind of prescribed goods covered by the accreditation cannot be ensured;

(b) a requirement prescribed by rules made for the purposes of paragraph 79(2)(b) is no longer met;

(d) the manager of the property:

(i) failed to comply with a direction given to the manager by an authorised officer or the Secretary; or

(ii) failed to comply with a request by an authorised officer to provide information or a document; or

(iii) failed to provide facilities and assistance to an auditor as required by section 271; or

(iv) failed to comply with a request made by an auditor under section 272;

(e) the manager of the property has engaged in conduct that:

(i) intimidated a person performing functions or exercising powers under this Act; or

(ii) hindered or prevented a person from performing functions or exercising powers under this Act;

(f) the manager of the property or any other person who manages or controls export operations carried out at the property:

(i) made a false, misleading or incomplete statement in an application under this Chapter; or

(ii) gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under this Act; or

(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;

(g) the manager of the property has contravened a requirement of this Act in relation to the accreditation of the property;

(h) a ground prescribed by the rules exists.

Note 1: A suspension must not be for more than 12 months (see section 97).

Note 2: A decision to suspend the accreditation of a property under this section is a reviewable decision (see Part 2 of Chapter 11).

Notice of proposed suspension

(2) The Secretary must not suspend the accreditation of a property under subsection (1) unless the Secretary has given a written notice to the manager of the property in accordance with subsection (3).

(3) A notice under subsection (2) must:

(a) specify each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the accreditation is proposed to be suspended; and

(b) specify the grounds for the proposed suspension; and

(c) subject to subsection (4), request the manager of the accredited property to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the accreditation should not be suspended as proposed; and

(d) include a statement setting out the manager’s right to seek review of a decision to suspend the accreditation as proposed.

(4) A notice under subsection (2) is not required to include the request referred to in paragraph (3)(c) if the Secretary reasonably believes that the grounds for the suspension are serious and urgent.

95 Grounds for suspension—overdue relevant Commonwealth liability

Notice of proposed suspension

(1) The Secretary may suspend the accreditation of a property in relation to all kinds of export operations and all kinds of prescribed goods if:

(a) a relevant Commonwealth liability of the manager of the property, or relating to the property, is more than 30 days overdue; and

(b) the Secretary has given a written notice to the person (the debtor) who is liable to pay the relevant Commonwealth liability in accordance with subsection (2); and

(i) the relevant Commonwealth liability has not been paid; or

(ii) the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.

Note 1: A suspension must not be for more than 12 months (see section 97).

Note 2: A decision to suspend the accreditation of a property under this section is a reviewable decision (see Part 2 of Chapter 11).

Note 3: If the Secretary suspends the accreditation of a property under this section, the Secretary may revoke the accreditation of the property in certain circumstances (see section 103).

(2) A notice under subsection (1) must:

(a) state that a relevant Commonwealth liability of the debtor in relation to an accredited property is more than 30 days overdue; and

(b) state that the Secretary may suspend the accreditation of the property for all kinds of export operations in relation to all kinds of prescribed goods if, within 8 days after the notice is given:

(i) the relevant Commonwealth liability is not paid; or

(ii) the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability; and

(c) include a statement setting out the debtor’s right to seek review of a decision to suspend the accreditation of the property.

Secretary may direct that activities not be carried out

(3) If the Secretary suspends the accreditation of a property under subsection (1), the Secretary may refuse to carry out, or direct a person not to carry out, specified activities or kinds of activities in relation to the debtor under this Act until the relevant Commonwealth liability has been paid.

Note: See also section 309 (general provisions relating to directions).

Action under this section does not affect liability to pay relevant Commonwealth liability

(4) Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.

96 Notice of suspension

(1) If the Secretary decides to suspend the accreditation of a property under this Division, the Secretary must give the manager of the property a written notice stating the following:

(a) that the accreditation of the property is to be suspended, for the period specified in the notice, in relation to all or specified kinds of export operations and all or specified kinds of prescribed goods and, if applicable, all or specified places to which goods may be exported;

(b) the reasons for the suspension;

(d) the period of the suspension.

(2) If the manager was given a notice (a show cause notice) under subsection 94(2) that included the request referred to in paragraph 94(3)(c), the suspension must not start before the earlier of the following:

(a) the day after any response to the request is received by the Secretary;

(b) the end of 14 days after the show cause notice was given.

97 Period of suspension

(1) A suspension of the accreditation of a property under this Division must not be for more than 12 months.

(2) The Secretary may vary the period of a suspension under this Division by written notice to the manager of the property. However, the total period of the suspension must not be more than 12 months.

Note: A decision to extend the period of a suspension is a reviewable decision (see Part 2 of Chapter 11).

98 Revocation of suspension

The Secretary may revoke a suspension of the accreditation of a property under this Division by written notice to the manager of the property.

Division 3—Other provisions

99 Effect of suspension

(1) If the accreditation of a property is suspended wholly or in part under Division 1 or 2 or under rules made for the purposes of subsection 109(3):

(a) the accreditation of the property remains in force while it is suspended; and

(b) subject to rules made for the purposes of subsection (2), the requirements of this Act in relation to the accreditation (including the conditions of the accreditation) must be complied with while the accreditation is suspended.

(2) The rules may prescribe requirements of this Act (including conditions of the accreditation of a property) that are not required to be complied with during any period when the accreditation is suspended.

100 Export operations must not be carried out while accreditation suspended

(1) The manager of an accredited property contravenes this subsection if:

(a) the manager was given a notice of suspension in relation to the accreditation of the property under subsection 92(5) or 96(1); and

(b) export operations in relation to which the accreditation was suspended were carried out at the property while the accreditation was suspended.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).

Fault‑based offence

(2) The manager of an accredited property commits an offence if the manager contravenes subsection (1).

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Civil penalty provision

(3) The manager of an accredited property is liable to a civil penalty if the manager contravenes subsection (1).

Civil penalty: 240 penalty units.

Part 6—Revocation of accreditation

Division 1—Revocation requested by manager

101 Manager may request revocation

(1) The manager of an accredited property (including a property in relation to which a suspension is in effect under Part 5) may request the Secretary to revoke the accreditation of the property.

Note: If the manager does not wish to revoke the accreditation of the property in relation to all kinds of export operations and all kinds of prescribed goods, the manager may apply to vary the accreditation under Division 1 of Part 4.

(2) A request under subsection (1) must:

(a) be in writing; and

(b) include the information (if any) prescribed by the rules.

(3) If the Secretary receives a request from the manager of an accredited property under subsection (1), the Secretary must, by written notice to the manager, revoke the accreditation of the property, with effect on the day specified in the notice.

(4) Subsection (3) does not apply if, before the request under subsection (1) was made, the Secretary:

(a) had given the manager of the property a notice under subsection 102(2) in relation to the accreditation; and

(b) had not decided whether to revoke the accreditation or not.

Division 2—Revocation by Secretary

102 Grounds for revocation—general

(1) The Secretary may revoke the accreditation of a property (including a property in relation to which a suspension is in effect under Part 5) if the Secretary reasonably believes any of the following: