Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2018
I, David Littleproud, Minister for Agriculture and Water Resources, make the following order.
Dated 17 September 2018
David Littleproud
Minister for Agriculture and Water Resources
Contents
1 Name
2 Commencement
3 Authority
4 Schedules
Schedule 1—Amendments
Export Control (Plants and Plant Products) Order 2011
This instrument is the Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2018.
(1) Each provision of this instrument 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. The whole of this instrument | The day after this instrument is registered. | 25 September 2018 |
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
This instrument is made under regulation 3 of the Export Control (Orders) Regulations 1982.
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Export Control (Plants and Plant Products) Order 2011
1 Subsection 5.1
Insert:
accredited property means a property that is accredited under Part 2A.
cost‑recovery charge means:
(a) a fee provided by the Export Control (Fees) Order 2015; 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
(c) a late payment fee relating to a fee described in paragraph (a) or a charge described in paragraph (b).
importing country requirement, in relation to prescribed goods that are to be imported into a country from Australia, means a requirement of that country that must be met before the goods may be imported into that country from Australia.
manager of a property means the person who is responsible for the day‑to‑day management of the property.
property has the same meaning as premises.
Note: For premises, see section 3 of the Act.
relevant Commonwealth liability means a cost‑recovery charge that is due and payable.
2 After subsection 9.1
Insert:
Accredited property
9.1A If the Secretary requires the goods to be produced or prepared at an accredited property for the purpose of meeting importing country requirements relating to the goods:
(a) the goods must have been produced or prepared at an accredited property; and
(b) the accreditation of the property must have covered the production or preparation of the goods for export to the relevant importing country; and
(c) at the time of the inspection of the goods for export compliance under Part 5, the accreditation of the property in relation to the production or preparation of the goods for export to the relevant importing country must not have been suspended or revoked.
3 After Part 2
Insert:
Division 1—Application for accreditation
9A Application for accreditation of property
9A.1 The manager of a property may apply to the Secretary to accredit the property for a kind of operations (including production and preparation) in relation to a kind of prescribed goods.
Note: An application may relate to a part of a property (see the definition of property in subsection 5.1 of this Order and paragraph (c) of the definition of premises in section 3 of the Act).
9A.2 An application:
(a) may relate to more than one kind of 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 prescribed goods are to be exported.
Note 1: The export of particular kinds of prescribed goods may be prohibited unless the goods have been produced or prepared at an accredited property (see subsections 9.1 and 9.1A).
Note 2: Division 7 sets out requirements for applications.
9B Secretary must decide whether to accredit property
9B.1 On receiving an application under section 9A to accredit a property, the Secretary must, unless the application has been withdrawn, decide either:
(a) to accredit the property; or
(b) to refuse to accredit the property.
Note 1: See section 9ZJ for matters relating to dealing with applications.
Note 2: If the application is to accredit the property for more than one kind of 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 operations in relation to some or all of those kinds of prescribed goods for export to some or all of those places.
Note 3: A decision to refuse to accredit a property for a kind of operations in relation to a kind of prescribed goods is a reviewable decision (see Part 16 of the General Order).
9B.2 The Secretary may accredit the property for a kind of operations in relation to a kind of prescribed goods and, if applicable, a specified place to which the prescribed goods may be exported if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that:
(a) prescribed goods produced or prepared at the property will meet relevant importing country requirements; and
(b) the conditions of the accreditation will be complied with; and
(c) either:
(i) all cost‑recovery charges of the manager of the property, or relating to the property, have been paid; or
(ii) if any cost‑recovery charges of the manager of the property, or relating to the property, have not been paid—the non‑payment is due to exceptional circumstances.
9B.3 If the Secretary accredits the property, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the accreditation.
Note: If an expiry date for the accreditation is not set under this subsection, the accreditation remains in force unless it is revoked (see subsection 9E.1).
9C Conditions of accreditation
9C.1 It is a condition of a property’s accreditation for a kind of operations in relation to a kind of prescribed goods that relevant importing country requirements in relation to the operations and the goods are met.
9C.2 The accreditation of a property is also subject to any additional conditions that the Secretary considers appropriate and that are specified in the notice given to the applicant under subsection 9D.1.
Note 1: The accreditation of a property may be suspended or revoked if a condition of the accreditation is contravened (see sections 9T and 9Y).
Note 2: The manager of an accredited property may commit an offence if a condition of the accreditation is contravened (see section 9ZB).
Note 3: Division 6 sets out additional obligations of the manager of an accredited property.
9D.1 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 operations and each kind of prescribed goods covered by the accreditation;
(c) if applicable, each place to which a kind of prescribed goods covered by the accreditation may be exported;
(d) the date when the accreditation takes effect;
(e) that the accreditation remains in force indefinitely or the expiry date for the accreditation;
(f) any additional conditions of the accreditation.
9D.2 If the Secretary decides not to accredit a property for a kind of operations in relation to a kind of prescribed goods, the Secretary must give the applicant written notice of the decision. The notice must include:
(a) the reasons for the decision; and
(b) a statement that the applicant may apply for reconsideration and review of the decision under Part 16 of the General Order.
9D.3 A failure to give notice of a decision as required by subsection 9D.2 does not affect the validity of the decision.
9E Period of effect of accreditation
9E.1 If there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked under Division 5.
9E.2 If there is an expiry date for the accreditation of a property (including an accreditation that has been renewed under Division 2), the accreditation remains in force until that expiry date unless:
(a) the accreditation is renewed under Division 2 on or before that date; or
(b) the accreditation is revoked under Division 5 before that date.
Division 2—Renewal of accreditation
9F Application to renew accreditation of property
9F.1 This section applies in relation to an accredited property (including a property in relation to which a suspension is in effect under Division 4) if there is an expiry date for the accreditation.
9F.2 The manager of the property may apply to the Secretary to renew the accreditation of the property.
Note: Division 7 sets out requirements for applications.
9F.3 An application for renewal:
(a) may relate to more than one kind of 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 prescribed goods are to be exported.
9F.4 An application for renewal of the accreditation of a property must be made:
(a) at least 28 days before the expiry date for the accreditation; or
(b) if the Secretary allows a longer period—within that longer period.
9F.5 If an application for renewal of the accreditation of a property is made after the period applying under subsection 9F.4:
(a) the application is taken to be an application to accredit the property; and
(b) Division 1 applies in relation to the application; and
(c) the other provisions of this Division do not apply in relation to the application.
9G Secretary must decide whether to renew accreditation
9G.1 On receiving an application under section 9F to renew the accreditation of a property, the Secretary must decide either:
(a) to renew the accreditation; or
(b) to refuse to renew the accreditation.
Note 1: See section 9ZJ 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 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 operations in relation to some or all of those kinds of prescribed goods for export to some or all of those places.
Note 3: A decision to refuse to renew the accreditation of a property for a kind of operations in relation to a kind of prescribed goods is a reviewable decision (see Part 16 of the General Order).
9G.2 The Secretary may refuse to renew the accreditation of the property for a kind of operations in relation to a kind of prescribed goods and, if applicable, a specified place to which the prescribed 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) prescribed goods produced or prepared at the property will meet relevant importing country requirements;
(b) the conditions of the accreditation have been, and are being, complied with;
(c) the manager of the property has complied with:
(i) the requirements of the Act and this Order; and
(ii) the requirements of any other instrument in force under the Act that applies in relation to the accreditation and the operations and prescribed goods covered by the accreditation;
(d) either:
(i) all cost‑recovery charges of the manager of the property, or relating to the property, have been paid; or
(ii) if any cost‑recovery charges of the manager of the property, or relating to the property, have not been paid—the non‑payment is due to exceptional circumstances.
9G.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: If an expiry date for the accreditation is not set under this subsection, the accreditation remains in force unless it is revoked (see subsection 9E.1).
9H Conditions of renewed accreditation
If the Secretary renews the accreditation of a property, the accreditation is subject to:
(a) the condition referred to in subsection 9C(1); and
(b) any additional conditions that the Secretary considers appropriate and that are specified in the notice given to the applicant under subsection 9J.1.
Note 1: The accreditation of a property may be suspended or revoked if a condition of the accreditation is contravened (see sections 9T and 9Y).
Note 2: The manager of an accredited property may commit an offence if a condition of the accreditation is contravened (see section 9ZB).
Note 3: Division 6 sets out additional obligations of the manager of an accredited property.
9J.1 If the accreditation of a property is renewed, the Secretary must give the applicant a written notice stating the information referred to in subsection 9D.1.
9J.2 If the Secretary decides not to renew the accreditation of a property for a kind of operations in relation to a kind of prescribed goods, the Secretary must give the applicant written notice of the decision. The notice must include:
(a) the reasons for the decision; and
(b) a statement that the applicant may apply for reconsideration and review of the decision under Part 16 of the General Order.
9J.3 A failure to give notice of a decision as required by subsection 9J.2 does not affect the validity of the decision.
Division 3—Variation of accreditation
Subdivision A—Application by manager
9K Application by manager for variation of accreditation or approval of alteration of property
9K.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 operations;
(ii) kinds of prescribed goods;
(iii) if applicable, places to which prescribed goods are to be exported; or
(b) to approve a variation of the accreditation so that it covers an alteration (other than a minor alteration) of the property; or
(c) to vary the conditions of the accreditation; 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).
Note: Division 7 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.
9K.2 For the purposes of paragraph 9K.1(b), a minor alteration of an accredited property is an alteration that does not or is not likely:
(a) to make the property unhygienic; or
(b) to result in a contravention of a condition of the accreditation of the property.
9K.3 An application under subsection 9K.1 to make or approve a variation in relation to the accreditation of a property must be made at least 28 days before the variation is intended to take effect.
9K.4 If the Secretary receives an application under subsection 9K.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 9ZJ for matters relating to dealing with applications.
Note 2: A decision to refuse the application is a reviewable decision (see Part 16 of the General Order).
9K.5 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:
(a) prescribed goods produced or prepared at the property will meet relevant importing country requirements; and
(b) the conditions of the accreditation have not been, and are not being, contravened; and
(c) the manager of the property has not contravened:
(i) the requirements of the Act and this Order; or
(ii) the requirements of any other instrument in force under the Act that applies in relation to the accreditation and the operations and prescribed goods covered by the accreditation.
Note: The manager of an accredited property may commit an offence if:
(a) an alteration (other than a minor alteration) of the property is made; and
(b) the alteration has not been approved, or the manager has not been given notice of the approval (see section 9M).
9L.1 If the Secretary makes a variation or gives an approval in relation to the accreditation of a property under paragraph 9K.4(a), the Secretary must give the manager of the property written notice of the variation or approval.
9L.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;
(c) the date the variation or approval takes effect.
Note: The accreditation, as varied, remains in force as provided by section 9E.
9L.3 If the Secretary decides to refuse an application under paragraph 9K.4(b), the Secretary must give the applicant written notice of the decision. The notice must include:
(a) the reasons for the decision; and
(b) a statement that the applicant may apply for reconsideration and review of the decision under Part 16 of the General Order.
9L.4 A failure to give notice of a decision as required by subsection 9L.3 does not affect the validity of the decision.
9M Certain variations must not be made unless approved
9M.1 The manager of an accredited property contravenes this subsection if:
(a) the property is altered; and
(b) the alteration is not a minor alteration within the meaning of subsection 9K.2; and
(c) either:
(i) the alteration was not approved under paragraph 9K.4(a); or
(ii) the alteration was approved under paragraph 9K.4(a) but the Secretary has not given the manager notice of the approval under subsection 9L.1.
Note: The Secretary may suspend or revoke the accreditation of the property if the manager contravenes this subsection (see paragraphs 9T.1(g) and 9Y.1(g)).
9M.2 The manager of an accredited property must not contravene subsection 9M.1.
Level 5 penal provision
Subdivision B—Variation by Secretary
9N Secretary may make variations in relation to accreditation
9N.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 operations; or
(ii) a kind of prescribed goods; or
(iii) if applicable, a place to which prescribed 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—set an expiry date;
(d) if there is an expiry date for the accreditation:
(i) vary the expiry date; or
(ii) vary the accreditation so that it remains in force indefinitely.
Note: Certain decisions under this subsection are reviewable decisions (see subsection 9N.6 of this section and Part 16 of the General Order).
9N.2 The Secretary may make a variation in relation to the accreditation of a property under paragraph 9N.1(a), (b) or (c), or set an earlier expiry date for the accreditation under subparagraph 9N.1(d)(i), only if the Secretary reasonably believes that:
(a) prescribed goods produced or prepared at the property are not meeting, or will not meet, relevant importing country requirements; or
(b) a condition of the accreditation has been, or is being, contravened; or
(c) the manager of the property has contravened:
(i) the requirements of the Act or this Order; or
(ii) the requirements of any other instrument in force under the Act that applies in relation to the accreditation and the operations and prescribed goods covered by the accreditation; or
(d) a different person has become, or is to become, the manager of the property; or
(e) it is necessary to do so:
(i) to take account of an event or circumstance notified under section 9ZD or 9ZE; or
(ii) to correct a minor or technical error.
9N.3 The Secretary must not make a variation in relation to the accreditation of a property under paragraph 9N.1(a), (b) or (c), or set an earlier expiry date for the accreditation under subparagraph 9N.1(d)(i), unless the Secretary has given a written notice to the manager of the property in accordance with subsection 9N.5.
9N.4 However, a notice is not required to be given under subsection 9N.3 if the Secretary reasonably believes that the grounds for making the proposed variation are serious and urgent.
Note: If the grounds for making a variation of the accreditation of a property are serious and urgent, the Secretary must give the manager of the property notice of the variation under subsection 9P.1.
9N.5 A notice under subsection 9N.3 must:
(a) specify each proposed variation; and
(b) specify the grounds for each proposed variation; and
(c) 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 variation.
Certain decisions are not reviewable decisions
9N.6 None of the following is an initial decision for the purposes of Part 16 of the General Order:
(a) a decision under paragraph 9N.1(a), (b) or (c) to vary an aspect of the accreditation of a property on a ground referred to in paragraph 9N.2(e);
(b) a decision under subparagraph 9N.1(d)(i) to set a later expiry date for the accreditation of a property;
(c) a decision under subparagraph 9N.1(d)(ii) to vary the accreditation of a property so that it remains in force indefinitely.
9P.1 If the Secretary makes a variation in relation to the accreditation of a property under subsection 9N.1, the Secretary must give the manager of the property written notice of the variation.
9P.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;
(c) if the variation is of the period of effect of the accreditation:
(i) the expiry date, or the varied expiry date, for the accreditation; or
(ii) that the accreditation remains in force indefinitely;
(d) the date the variation takes effect.
9P.3 If the manager was given a notice (a show cause notice) under subsection 9N.3, 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 9E.
Division 4—Suspension of accreditation
Subdivision A—Suspension requested by manager
9R Manager may request suspension
9R.1 The manager of an accredited property may request the Secretary to suspend the accreditation of the property in relation to a kind of operations and a kind of prescribed goods and, if applicable, a place to which the prescribed goods may be exported.
9R.2 A request under subsection 9R.1 may relate to more than one kind of operations or more than one kind of prescribed goods and, if applicable, more than one place.
9R.3 A request under subsection 9R.1 must:
(a) be in writing; and
(b) state each kind of operations and each kind of prescribed goods and, if applicable, each place in relation to which the accreditation is to be suspended; and
(c) specify the reason for the suspension.
9R.4 If the Secretary receives a request from the manager of an accredited property under subsection 9R.1, the Secretary must, by written notice to the manager, suspend the accreditation as requested, with effect on the day specified in the notice.
9S Request to revoke suspension
9S.1 If the accreditation of a property is suspended under section 9R, the manager of the property may request the Secretary to revoke the suspension.
9S.2 A request under subsection 9S.1 must:
(a) be in writing; and
(b) state the reason for the request; and
(c) be accompanied by any information or documents in support of the request.
9S.3 If the Secretary receives a request from the manager of an accredited property under subsection 9S.1, the Secretary may:
(a) if the Secretary is satisfied that the reasons for the suspension no longer exist 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 section 9T; or
(ii) revoke the accreditation of the property under section 9Y.
Subdivision B—Suspension by Secretary
9T Grounds for suspension—general
9T.1 The Secretary may suspend the accreditation of a property in relation to one or more kinds of operations and one or more kinds of prescribed goods and, if applicable, one or more places to which the prescribed goods may be exported if the Secretary reasonably believes that:
(a) the integrity of prescribed goods covered by the accreditation cannot be ensured; or
(b) a condition of the accreditation has been, or is being, contravened; or
(c) 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 comply with a request made by an auditor under section 45A; or
(iv) failed to provide assistance to an auditor as required by section 46; or
(d) the manager of the property has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under the Act or this Order; or
(ii) hindered or prevented a person from performing functions or exercising powers under the Act or this Order; or
(e) a false, misleading or incomplete statement was made in an application under this Part; or
(f) false, misleading or incomplete information or documents were given to the Secretary or to another person performing functions or exercising powers under the Act or this Order; or
(g) the manager of the property has contravened:
(i) the requirements of the Act or this Order; or
(ii) the requirements of any other instrument in force under the Act that applies in relation to the accreditation and the operations and prescribed goods covered by the accreditation.
Note 1: A suspension must not be for more than 12 months (see section 9UA).
Note 2: Part 16 of the General Order (which deals with reconsideration and review of decisions) applies to a decision under this subsection.
Notice of proposed suspension
9T.2 The Secretary must not suspend the accreditation of a property under subsection 9T.1 unless the Secretary has given a written notice to the manager of the property in accordance with subsection 9T.4.
9T.3 However, a notice is not required to be given under subsection 9T.2 if the Secretary reasonably believes that the grounds for the proposed suspension are serious and urgent.
Note: If the grounds for suspending the accreditation of a property are serious and urgent, the Secretary must give the manager of the property notice of the suspension under subsection 9U.1.
9T.4 A notice under subsection 9T.2 must:
(a) specify each kind of 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) 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.
9TA Grounds for suspension—overdue relevant Commonwealth liability
9TA.1 The Secretary may suspend the accreditation of a property in relation to all kinds of 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 9TA.2; and
(c) within 8 days after the notice is given:
(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 9UA).
Note 2: Part 16 of the General Order (which deals with reconsideration and review of decisions) applies to a decision under this subsection.
9TA.2 A notice under subsection 9TA.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 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
9TA.3 If the Secretary suspends the accreditation of a property under subsection 9TA.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.
Action under this section does not affect liability to pay relevant Commonwealth liability
9TA.4 Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.
9TB Other grounds for suspension
The Secretary may suspend the accreditation of a property in relation to all kinds of operations and all kinds of prescribed goods if:
(a) the Secretary:
(i) receives a notice from the person in whose name the property is accredited under section 9ZE; or
(ii) otherwise becomes aware that the person in whose name the property is accredited has ceased to be the manager of the property; and
(b) another person has become the manager of the property.
9U.1 If the Secretary decides to suspend the accreditation of a property under this Subdivision, the Secretary must give the manager of the property a written notice stating:
(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 operations and all or specified kinds of prescribed goods and, if applicable, all or specified places to which prescribed goods may be exported; and
(b) the reasons for the suspension; and
(c) the date the suspension is to start; and
(d) the period of the suspension; and
(e) that the manager may apply for reconsideration and review of the decision under Part 16 of the General Order.
9U.2 If the manager was given a notice (a show cause notice) under subsection 9T.2, the suspension must not start before the earlier of the following:
(a) the day after any response to the request to show cause included in the notice is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
9UA.1 A suspension of the accreditation of a property under this Subdivision must not be for more than 12 months.
9UA.2 The Secretary may vary the period of a suspension under this Subdivision by written notice to the manager of the property. However, the total period of the suspension must not be more than 12 months.
Note: Part 16 of the General Order (which deals with reconsideration and review of decisions) applies to a decision to extend the period of a suspension.
The Secretary may revoke a suspension of the accreditation of a property under this Subdivision by written notice to the manager of the property.
Subdivision C—Other provisions
If the accreditation of a property is suspended wholly or in part under Subdivision A or B:
(a) the accreditation of the property remains in force while it is suspended; and
(b) the requirements of the Act, this Order and any other instrument in force under the Act that applies in relation to the accreditation and the operations and prescribed goods covered by the accreditation (including the conditions of the accreditation) must be complied with while the accreditation is suspended.
9W Suspended operations must not be carried out during suspension period
If the manager of an accredited property receives a notice under subsection 9R.4 or 9U.1 stating that the accreditation of the property has been, or is to be, suspended in relation to all or specified kinds of operations and all or specified kinds of prescribed goods and, if applicable, all or specified places to which goods may be exported, the manager must ensure that operations are not carried out in relation to which the accreditation is suspended.
Level 5 penal provision
Division 5—Revocation of accreditation
Subdivision A—Revocation requested by manager
9X Manager may request revocation
9X.1 The manager of an accredited property (including a property in relation to which a suspension is in effect under Division 4) 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 operations and all kinds of prescribed goods, the manager may apply to vary the accreditation under Subdivision A of Division 3.
9X.2 A request under subsection 9X.1 must be in writing.
9X.3 If the Secretary receives a request from the manager of an accredited property under subsection 9X.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.
9X.4 Subsection 9X.3 does not apply if, before the request under subsection 9X.1 was made, the Secretary:
(a) had given the manager of the property a notice under subsection 9Y.2 in relation to the accreditation; and
(b) had not decided whether to revoke the accreditation or not.
Subdivision B—Revocation by Secretary
9Y Grounds for revocation—general
9Y.1 The Secretary may revoke the accreditation of a property (including a property in relation to which a suspension is in effect under Division 4) if the Secretary reasonably believes that:
(a) the integrity of prescribed goods covered by the accreditation cannot be ensured; or
(b) a condition of the accreditation has been, or is being, contravened; or
(c) 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 comply with a request made by an auditor under section 45A; or
(iv) failed to provide assistance to an auditor as required by section 46; or
(d) the manager of the property has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under the Act or this Order; or
(ii) hindered or prevented a person from performing functions or exercising powers under the Act or this Order; or
(e) a false, misleading or incomplete statement was made in an application under this Part; or
(f) false, misleading or incomplete information or documents were given to the Secretary or to another person performing functions or exercising powers under the Act or this Order; or
(g) the manager of the property has contravened:
(i) the requirements of the Act or this Order; or
(ii) the requirements of any other instrument in force under the Act that applies in relation to the accreditation and the operations and prescribed goods covered by the accreditation.
Note: Part 16 of the General Order (which deals with reconsideration and review of decisions) applies to a decision under this subsection.
Notice of proposed revocation
9Y.2 The Secretary must not revoke the accreditation of a property under subsection 9Y.1 unless the Secretary has given a written notice to the manager of the property in accordance with subsection 9Y.4.
9Y.3 However, a notice is not required to be given under subsection 9Y.2 if the Secretary reasonably believes that the grounds for the proposed revocation are serious and urgent.
Note: If the grounds for revoking the accreditation of a property are serious and urgent, the Secretary must give the manager of the property notice of the revocation under subsection 9Z.1.
9Y.4 A notice under subsection 9Y.2 must:
(a) specify the grounds for the proposed revocation; and
(b) 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 revoked; and
(c) include a statement setting out the manager’s right to seek review of a decision to revoke the accreditation.
9YA Grounds for revocation—overdue relevant Commonwealth liability
9YA.1 The Secretary may revoke the accreditation of a property if:
(a) the accreditation is suspended under subsection 9TA.1 for non‑payment of a relevant Commonwealth liability; and
(b) within 90 days after the start of the suspension:
(i) the relevant Commonwealth liability had not been paid; or
(ii) the person (the debtor) who is liable to pay the relevant Commonwealth liability had not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.
Note: Part 16 of the General Order (which deals with reconsideration and review of decisions) applies to a decision under this subsection.
Secretary may direct that activities not be carried out
9YA.2 If the Secretary revokes the accreditation of a property under subsection 9YA.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.
Action under this section does not affect liability to pay relevant Commonwealth liability
9YA.3 Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.
9YB Other grounds for revocation
Person ceases to manage property
9YB.1 The Secretary may revoke the accreditation of a property if the Secretary:
(a) receives a notice from the former manager of the property under section 9ZE; or
(b) otherwise becomes aware that the person in whose name the property is accredited has ceased to be the manager of the property.
9YB.2 The Secretary may act under subsection 9YB.1 whether or not another person has become the manager of the property.
Property becomes a registered establishment
9YB.3 The Secretary may revoke the accreditation of a property if the property is, or becomes, a registered establishment.
9Z.1 If the Secretary decides to revoke the accreditation of a property under this Subdivision, the Secretary must give the manager of the property a written notice stating:
(a) that the accreditation of the property is to be revoked; and
(b) the reasons for the revocation; and
(c) the date the revocation is to take effect; and
(d) that the manager may apply for reconsideration and review of the decision under Part 16 of the General Order.
9Z.2 If the manager was given a notice (a show cause notice) under subsection 9Y.2, the revocation must not take effect before the earlier of the following:
(a) the day after any response to the request to show cause included in the notice is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
Subdivision C—Other provisions
9ZA Secretary may require action to be taken after accreditation revoked
9ZA.1 This section applies if:
(a) a person was given notice of revocation of the accreditation of a property under subsection 9X.3 or 9Z.1; or
(b) the accreditation of the property was revoked under Subdivision A or B of this Division.
9ZA.2 The Secretary may, in writing, direct the person to take specified action, within a specified period after the accreditation is revoked, in relation to the operations and prescribed goods that were covered by the accreditation. The action must be action that is necessary for the purpose of achieving one or more objects of the Act or this Order.
9ZA.3 A direction to a person under subsection 9ZA.2 must state that, if the person fails to comply with the direction, the person could commit an offence against the Export Control (Orders) Regulations 1982.
9ZA.4 A person who is given a direction under subsection 9ZA.2 must comply with the direction.
Level 5 penal provision
Division 6—Obligations of managers of accredited properties
9ZB Conditions of accreditation must not be contravened
The manager of an accredited property (including a property in relation to which a suspension is in effect under Division 4) must ensure that the conditions of accreditation of the property are not contravened.
Level 5 penal provision
9ZC Additional or corrected information in relation to application for accreditation etc.
9ZC.1 The manager of an accredited property must comply with subsection 9ZC.2 if the manager becomes aware that information included in an application made by the manager under this Part, or information or a document given to the Secretary in relation to such an application, was incomplete or incorrect.
9ZC.2 The manager of the property must, as soon as practicable, give the Secretary additional or corrected information, to the extent that it is relevant to assessing whether:
(a) the requirements of the Act or this Order in relation to a matter covered by the accreditation of the property have been, are being, or will be complied with; or
(b) importing country requirements in relation to a matter covered by the accreditation of the property have been, are being, or will be met.
Note 1: A person may commit an offence 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).
Note 2: The Secretary may suspend or revoke the accreditation of the property if the manager fails to comply with this subsection (see paragraphs 9T.1(g) and 9Y.1(g)).
Level 3 penal provision
9ZD Notice of event or change in circumstances
The manager of an accredited property must notify the Secretary, in writing, as soon as practicable after any of the following events or circumstances occurs:
(a) there is a change in the manager’s business structure;
(b) if the manager is an individual—the individual enters into a personal insolvency agreement under Part X of the Bankruptcy Act 1966;
(c) if the manager is a corporation—the corporation:
(i) enters into administration (within the meaning of section 435C of the Corporations Act 2001); or
(ii) is to be wound up (whether by a court or voluntarily);
(d) there is a change in the trading name, business address or contact details of the manager;
(e) a condition of the accreditation is contravened;
(f) any other event or circumstance that relates to a matter covered by the accreditation.
Note: If a person ceases to be the manager of an accredited property, the person must notify the Secretary in accordance with section 9ZE.
Level 5 penal provision
9ZE Notice of person ceasing to be manager of accredited property
If the person in whose name a property is accredited (the former manager) ceases to be the manager of the property, the former manager (or another person who is legally authorised to act on behalf of the former manager) must, as soon as practicable after the cessation, notify the Secretary, in writing, of that fact. The notice must also include contact details for the person giving the notice.
Note: If the person in whose name a property is accredited ceases to be the manager of the property, the accreditation of the property may be suspended under section 9TB or revoked under subsection 9YB.1.
Level 3 penal provision
Division 7—Applications for accreditation etc.
9ZF Applications to which this Division applies
This Division applies in relation to the following applications:
(a) an application under Division 1 to accredit a property;
(b) an application under Division 2 to renew the accreditation of a property;
(c) an application under Subdivision A of Division 3:
(i) to make a variation in relation to the accreditation of a property; or
(ii) to approve a variation of the accreditation of a property so that it covers an alteration of the property.
9ZG Requirements for applications
9ZG.1 An application must:
(a) be made:
(i) in a manner, approved, in writing, by the Secretary; and
(ii) within such period (if any) specified, in writing, by the Secretary; and
(b) if the Secretary has approved a form for making the application:
(i) include the information required by the form; and
(ii) be accompanied by any documents required by the form.
Note: A person may commit an offence if the person makes a false or misleading statement in the application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code).
9ZG.2 The Secretary may accept any information or document previously given to the Secretary in connection with an application made under this Order or the General Order, or a notice of intention to export a consignment of prescribed goods given under this Order, as satisfying any requirement to give that information or document under subsection 9ZG.1.
9ZG.3 An application is taken not to have been made if the application does not comply with the requirements referred to in subsection 9ZG.1 for the application.
9ZG.4 To avoid doubt, the Secretary may approve:
(a) different forms for applications relating to different kinds of properties, operations or prescribed goods; or
(b) a single form for more than one kind of application.
9ZH Additional or corrected information
9ZH.1 A person who has made an application must comply with subsection 9ZH.2 if the person becomes aware that information included in the application, or information or a document given to the Secretary in relation to the application, was incomplete or incorrect.
9ZH.2 The person must, as soon as practicable, give the Secretary additional or corrected information, to the extent that it is relevant to the Secretary’s consideration of the application.
Note: A person may commit an offence 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).
Level 3 penal provision
9ZJ.1 For the purpose of making a decision in relation to an application, the Secretary may do any of the following:
(a) request the applicant, or another person who the Secretary considers may have information or documents relevant to the application or the applicant, to give the Secretary further specified information or documents relevant to the application or the applicant;
(b) request consent to enter premises of the applicant or of another person:
(i) to inspect, examine or evaluate the premises and operations carried out in relation to prescribed goods to which the application relates; or
(ii) to take samples of prescribed goods, or from equipment used in operations, to which the application relates; or
(iii) to take photographs of prescribed goods, or of equipment used in operations, to which the application relates;
(c) request consent to allow a person with appropriate qualifications or expertise to assist the Secretary in doing a thing under paragraph (b);
(d) request the applicant, or a person with appropriate qualifications or expertise, to provide a demonstration of operations carried out in relation to goods to which the application relates;
(e) test, or analyse, any samples taken under subparagraph (b)(ii);
(f) arrange for another person, with appropriate qualifications or expertise, to test, or analyse, any samples taken under subparagraph (b)(ii).
9ZJ.2 A request under subsection 9ZJ.1 must:
(a) be in writing; and
(b) specify the period within which the request must be complied with.
4 Subsection 45.1
After “qualified person”, insert “(in this Part called an auditor)”.
5 Before paragraph 45.1(a)
Insert:
(aa) operations carried out at an accredited property or covered by the accreditation of the property;
6 After section 45
Insert:
45A.1 For the purpose of conducting an audit under this Part, an auditor may do anything the auditor considers necessary, including the following:
(a) request a person who the auditor reasonably believes has information or documents that are relevant to the audit to answer questions, provide information in writing, or produce the documents;
(b) take samples of goods, or from equipment or other things used in operations in relation to prescribed goods for export or other operations, to which the audit relates;
(c) take, test or analyse samples of goods, or from equipment or other things used in operations in relation to prescribed goods for export or other operations, to which the audit relates;
(d) arrange for another person with appropriate qualifications or expertise to take, test or analyse samples of goods, or from equipment or other things used in operations in relation to prescribed goods for export or other operations, to which the audit relates.
Note: A person may commit an offence if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code).
45A.2 An auditor:
(a) may make copies of, or take extracts from, a document produced under paragraph 45A.1(a); and
(b) for that purpose, may remove the document from the place where it was produced.
7 Subsection 46.1
Repeal the subsection, substitute:
46.1 The manager of an accredited property, the occupier of an establishment or the exporter (as the case requires) must provide such assistance required by an auditor as is reasonably necessary to enable the auditor to perform the audit of the relevant operations.
8 Subsection 46.2
Omit “the occupier”, substitute “, the manager, occupier”.
9 Part 13 (after the heading)
Insert:
10 Before section 50
Insert:
11 At the end of Part 13
Add:
50A Definitions for this Division
In this Division:
commencement day means the day the Export Control (Plants and Plant Products) Amendment (Accredited Properties) Order 2018 commences.
51 Meaning of export listed property
51.1 For the purposes of this Division, an export listed property is a property that was listed by the Department before the commencement day as meeting importing country requirements relating to one or more kinds of operations in relation to one or more kinds of prescribed goods for export to one or more places.
51.2 However, a property is not an export listed property for the purposes of this Division if the listing of the property was suspended immediately before the commencement day.
52 Properties that were export listed properties immediately before commencement day
52.1 This section applies in relation to a property that was an export listed property immediately before the commencement day.
52.2 The property is taken to be accredited under Part 2A for each kind of operations in relation to each kind of prescribed goods and, if applicable, each place that was covered by the listing (the previous listing) of the property.
52.3 If the previous listing of the property was given subject to one or more conditions, the accreditation of the property has effect subject to those conditions.
52.4 The accreditation of the property is taken to have an expiry date. The expiry date for the accreditation is the last day of the period of 12 months beginning on the day the previous listing of the property took effect.
Note: The accreditation may be renewed under Division 2 of Part 2A.
53 Applications for listing made before commencement day
53.1 This section applies if:
(a) before the commencement day the manager of a property had made an application to the Department for the property to be listed as an export listed property; and
(b) no decision on the application had been made before that day.
53.2 The application is taken to be an application made to the Secretary under subsection 9A.1 to accredit the property for each kind of operations in relation to each kind of prescribed goods and, if applicable, each place specified in the application.
53.3 The application is taken:
(a) to be an application in relation to which Division 7 of Part 2A applies; and
(b) to comply with the requirements referred to in subsection 9ZG.1.
54 Applications to renew listing made before commencement day
54.1 This section applies in relation to a property if:
(a) immediately before the commencement day, the property was an export listed property; and
(b) before that day the manager of the property had made an application to the Department to renew the listing of the property for one or more kinds of operations in relation to one or more kinds of prescribed goods and, if applicable, one or more places covered by the listing; and
(c) no decision on the application had been made before that day.
54.2 The application is taken to be an application made to the Secretary under subsection 9F.2 to renew the accreditation of the property for each kind of operations in relation to each kind of prescribed goods and, if applicable, each place specified in the application.
Note: The property is taken to be an accredited property (see subsection 52.2).
54.3 The application is taken:
(a) to be an application in relation to which Division 7 of Part 2A applies; and
(b) to comply with the requirements referred to in subsection 9ZG.1.
55 Applications to vary listing made before commencement day
55.1 This section applies in relation to a property if:
(a) immediately before the commencement day, the property was an export listed property; and
(b) before that day the manager of the property had made an application to the Department:
(i) to vary a matter covered by the listing of the property; or
(ii) to approve an alteration of the property; or
(iii) to vary the conditions of the listing; or
(iv) to vary the particulars relating to the listing to make a minor change to a matter; and
(c) no decision on the application had been made before that day.
55.2 The application is taken to be an application made to the Secretary under subsection 9K.1 to vary the accreditation of the property as specified in the application.
Note: The property is taken to be an accredited property (see subsection 52.2).
55.3 The application is taken:
(a) to be an application in relation to which Division 7 of Part 2A applies; and
(b) to comply with the requirements referred to in subsection 9ZG.1.
56 Requests to suspend listing made before commencement day
56.1 This section applies in relation to a property if:
(a) immediately before the commencement day, the property was an export listed property; and
(b) before that day the manager of the property had, in writing, requested the Department to suspend the listing of the property in relation to one or more kinds of operations and one or more kinds of prescribed goods and, if applicable, one or more places covered by the listing; and
(c) the request had not been dealt with before that day.
56.2 The request is taken to be a request made to the Secretary under subsection 9R.1 to suspend the accreditation of the property in relation to each kind of operations and each kind of prescribed goods and, if applicable, each place specified in the application.
Note: The property is taken to be an accredited property (see subsection 52.2).
57 Requests to revoke listing made before commencement day
57.1 This section applies in relation to a property if:
(a) immediately before the commencement day, the property was an export listed property; and
(b) before that day the manager of the property had, in writing, requested the Department to revoke the listing of the property; and
(c) the request had not been dealt with before that day.
57.2 The request is taken to be a request made to the Secretary under subsection 9X.1 to revoke the accreditation of the property.
Note: The property is taken to be an accredited property (see subsection 52.2).
58.1 Each of the following provisions in Part 2A has effect during the period of 12 months beginning on the commencement day as if the reference to Level 5 penal provision were omitted:
(a) subsection 9M.2;
(b) section 9W;
(c) subsection 9ZA.4;
(d) section 9ZB;
(e) section 9ZD.
58.2 Each of the following provisions in Part 2A has effect during the period of 12 months beginning on the commencement day as if the reference to Level 3 penal provision were omitted:
(a) subsection 9ZC.2;
(b) section 9ZE;
(c) subsection 9ZH.2.
59 Prescribed goods produced or prepared before commencement day and exported on or after that day
59.1 This section applies if:
(a) a consignment of prescribed goods is to be exported to a place on or after the commencement day; and
(b) the prescribed goods were produced or prepared before that day; and
(c) the condition set out in subsection 9.1A is required to be met in relation to the prescribed goods.
59.2 Subsection 9.1A has effect in relation to the prescribed goods as if:
(a) a reference to an accredited property included a reference to an export listed property; and
(b) a reference to the accreditation of the property included a reference to the listing of the property.