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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Export Control Bill 2019
No. , 2019
(Agriculture)
A Bill for an Act to provide for the control of the
export of certain goods, and for related purposes
No. , 2019
Export Control Bill 2019
i
Contents
Chapter 1--Preliminary
1
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects of this Act ............................................................................. 2
4
Simplified outline of this Act ............................................................ 3
5
Act binds the Crown .......................................................................... 5
6
Application of this Act in Australia ................................................... 5
7
Limited application of this Act outside Australia .............................. 6
8
Extension of this Act to external Territories and other areas ............. 7
9
Application of this Act in external Territories and other areas .......... 8
10
Rights of foreign aircraft and vessels under Convention on
the Law of the Sea not affected ......................................................... 9
11
Concurrent operation of State and Territory laws .............................. 9
Part 2--Interpretation
11
Division 1--Definitions
11
12
Definitions ....................................................................................... 11
13
Meaning of
associate
....................................................................... 24
14
Meaning of
Australian territory
...................................................... 26
15
Meaning of
entered for export
......................................................... 26
16
Meaning of
export operations
......................................................... 27
17
Meaning of
installation
................................................................... 27
18
Meaning of
integrity
........................................................................ 28
19
Meaning of
occupier
........................................................................ 28
Division 2--Other interpretation provisions
29
20
When goods are exported ................................................................ 29
21
Persons who manage or control export operations .......................... 29
Chapter 2--Exporting goods
31
Part 1--Goods
31
Division 1--Introduction
31
22
Simplified outline of this Part .......................................................... 31
Division 2--Prohibited goods
33
Subdivision A--Permanently prohibited goods
33
23
Goods that are prohibited from export absolutely ........................... 33
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Export Control Bill 2019
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Subdivision B--Temporarily prohibited goods
33
24
Minister may temporarily prohibit export of goods from
Australian territory, or from a part of Australian territory, for
a period ............................................................................................ 33
25
Variation of temporary prohibition determination ........................... 34
26
Effect of temporary prohibition determination on
government certificate or export permit .......................................... 34
27
Temporary prohibition determination prevails over
inconsistent rules ............................................................................. 35
Division 3--Prescribed goods and conditions of export
36
28
Rules may prescribe goods for the purposes of this Act .................. 36
29
Rules may prohibit export of prescribed goods subject to
conditions ........................................................................................ 36
Division 4--Offences and civil penalty provisions
39
30
Exporting goods that are subject to absolute prohibition on
export--basic contravention ............................................................ 39
31
Exporting goods that are subject to absolute prohibition on
export--intention to obtain commercial advantage ......................... 39
32
Exporting goods that are subject to absolute prohibition on
export--economic consequences for Australia ................................ 41
33
Conveying or possessing goods that are subject to absolute
prohibition on export and are intended to be exported etc. .............. 42
34
Exporting goods to a temporarily prohibited place--basic
contravention ................................................................................... 44
35
Exporting goods to a temporarily prohibited place--intention
to obtain commercial advantage ...................................................... 44
36
Exporting goods to a temporarily prohibited place--
economic consequences for Australia .............................................. 46
37
Conveying or possessing goods that are intended to be
exported to a temporarily prohibited place etc. ................................ 47
38
Exporting prescribed goods--non-compliance with
prescribed export conditions--basic contravention ......................... 48
39
Exporting prescribed goods--non-compliance with
prescribed export conditions--intention to obtain
commercial advantage ..................................................................... 49
40
Exporting prescribed goods--non-compliance with
prescribed export conditions--economic consequences for
Australia .......................................................................................... 51
41
Conveying or possessing prescribed goods that are intended
to be exported in contravention of conditions etc. ........................... 52
42
Exporting prescribed goods to a particular place--
non-compliance with prescribed export conditions--basic
contravention ................................................................................... 53
No. , 2019
Export Control Bill 2019
iii
43
Exporting prescribed goods to a particular place--
non-compliance with prescribed export conditions--
intention to obtain commercial advantage ....................................... 54
44
Exporting prescribed goods to a particular place--
non-compliance with prescribed export conditions--
economic consequences for Australia .............................................. 56
45
Conveying or possessing prescribed goods that are intended
to be exported to a particular place in contravention of
conditions etc. .................................................................................. 57
46
Producing or preparing prescribed goods or other goods at
certain premises in contravention of conditions--general ............... 59
47
Producing or preparing prescribed goods or other goods at
certain premises in contravention of conditions--goods to be
exported to a particular place ........................................................... 60
48
Making false or misleading representation about prescribed
goods that are entered for export--general ...................................... 61
49
Making false or misleading representation about prescribed
goods that are entered for export to a particular place ..................... 62
50
Making false or misleading representation about
non-prescribed goods that are entered for export ............................. 63
50A
Penalties for certain contraventions by bodies corporate ................. 64
Part 2--Exemptions
66
Division 1--Introduction
66
51
Simplified outline of this Part .......................................................... 66
52
Application of this Part .................................................................... 66
Division 2--Exemptions
68
53
Application for exemption ............................................................... 68
54
Secretary must decide whether to grant exemption ......................... 69
55
Exemption may be granted subject to conditions ............................ 70
56
Notice of decision ............................................................................ 71
57
Period of effect of exemption .......................................................... 71
58
Variation of conditions of exemption .............................................. 72
59
Revocation of exemption ................................................................. 72
60
Effect of exemption ......................................................................... 73
Part 3--Government certificates
74
Division 1--Introduction
74
61
Simplified outline of this Part .......................................................... 74
Division 2--Rule-making powers
76
62
Rules may make provision for and in relation to government
certificates ....................................................................................... 76
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No. , 2019
63
Issuing bodies .................................................................................. 77
64
Certain issuing bodies may charge fees ........................................... 77
Division 3--Issue of government certificate
79
65
Application for government certificate ............................................ 79
66
Additional or corrected information ................................................ 80
67
Issuing body must decide whether to issue government
certificate ......................................................................................... 80
68
Powers of Secretary in relation to application ................................. 82
69
Applications in relation to certain kinds of non-prescribed
goods ............................................................................................... 83
70
Government certificate for goods that are to be, or that have
been, exported from certain external Territories .............................. 84
71
Manner of issuing government certificate ....................................... 84
72
Period of effect of government certificate ....................................... 84
Division 4--Other matters
86
73
Secretary may require assessment of goods ..................................... 86
74
Additional or corrected information in relation to application
for government certificate etc. ......................................................... 86
75
Revocation of government certificate .............................................. 87
76
Return of government certificate ..................................................... 88
Chapter 3--Accredited properties
90
Part 1--Introduction
90
77
Simplified outline of this Chapter .................................................... 90
Part 2--Application for accreditation
91
78
Application for accreditation of property ........................................ 91
79
Secretary must decide whether to accredit property ........................ 91
80
Conditions of accreditation .............................................................. 93
81
Notice of decision ............................................................................ 94
82
Period of effect of accreditation ...................................................... 94
Part 3--Renewal of accreditation
96
83
Application to renew accreditation of property ............................... 96
84
Secretary must decide whether to renew accreditation .................... 96
85
Conditions of renewed accreditation ............................................... 98
86
Notice of decision ............................................................................ 99
Part 4--Variation of accreditation
100
Division 1--Application by manager
100
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87
Application by manager for variation of accreditation or
approval of alteration of property .................................................. 100
88
Notice of variation or approval of alteration .................................. 101
89
Certain variations must not be made unless approved ................... 102
Division 2--Variation by Secretary
103
90
Secretary may make variations in relation to accreditation ........... 103
91
Notice of variation ......................................................................... 104
Part 5--Suspension of accreditation
106
Division 1--Suspension requested by manager
106
92
Manager may request suspension .................................................. 106
93
Request to revoke suspension ........................................................ 106
Division 2--Suspension by Secretary
108
94
Grounds for suspension--general .................................................. 108
95
Grounds for suspension--overdue relevant Commonwealth
liability .......................................................................................... 110
96
Notice of suspension ...................................................................... 111
97
Period of suspension ...................................................................... 112
98
Revocation of suspension .............................................................. 112
Division 3--Other provisions
113
99
Effect of suspension ...................................................................... 113
100
Export operations must not be carried out while accreditation
suspended ...................................................................................... 113
Part 6--Revocation of accreditation
115
Division 1--Revocation requested by manager
115
101
Manager may request revocation ................................................... 115
Division 2--Revocation by Secretary
116
102
Grounds for revocation--general .................................................. 116
103
Grounds for revocation--overdue relevant Commonwealth
liability .......................................................................................... 117
104
Notice of revocation ...................................................................... 118
Division 3--Other provisions
119
105
Secretary may require action to be taken after accreditation
revoked .......................................................................................... 119
Part 7--Obligations of managers of accredited properties etc.
121
106
Conditions of accreditation must not be contravened .................... 121
107
Additional or corrected information in relation to application
for accreditation etc. ...................................................................... 123
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Export Control Bill 2019
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108
Notice of event or change in circumstances................................... 124
109
Notice of person ceasing to be manager of accredited
property ......................................................................................... 124
Chapter 4--Registered establishments
126
Part 1--Introduction
126
110
Simplified outline of this Chapter .................................................. 126
Part 2--Application for registration
128
111
Application for registration of establishment................................. 128
112
Secretary must decide whether to register establishment ............... 128
113
Conditions of registration .............................................................. 130
114
Notice of decision and certificate of registration ........................... 131
115
Period of effect of registration ....................................................... 131
Part 3--Renewal of registration
133
116
Application to renew registration of establishment ....................... 133
117
Secretary must decide whether to renew registration .................... 133
118
Conditions of renewed registration ................................................ 135
119
Notice of decision and certificate of registration ........................... 136
Part 4--Variation of registration
137
Division 1--Application by occupier
137
120
Application by occupier for variation of registration or
approval of alteration of establishment .......................................... 137
121
Notice of variation or approval of alteration .................................. 138
122
Certain alterations of registered establishment must not be
made unless approved etc. ............................................................. 139
Division 2--Variation by Secretary
141
123
Secretary may make variations in relation to registration .............. 141
124
Notice of variation ......................................................................... 143
Part 5--Suspension of registration
145
Division 1--Suspension requested by occupier
145
125
Occupier may request suspension .................................................. 145
126
Request to revoke suspension ........................................................ 145
Division 2--Suspension by Secretary
147
127
Grounds for suspension--general .................................................. 147
128
Grounds for suspension--overdue relevant Commonwealth
liability .......................................................................................... 149
129
Notice of suspension ...................................................................... 150
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Export Control Bill 2019
vii
130
Period of suspension ...................................................................... 151
131
Revocation of suspension .............................................................. 151
Division 3--Direction to cease carrying out export operations
152
132
Direction to cease carrying out export operations--failure to
comply with conditions or requirements of this Act etc. ............... 152
133
Occupier must comply with direction ............................................ 153
134
Revocation of direction ................................................................. 153
Division 4--Other provisions
155
135
Effect of suspension ...................................................................... 155
136
Export operations must not be carried out while registration
suspended ...................................................................................... 155
Part 6--Revocation of registration
157
Division 1--Revocation requested by occupier
157
137
Occupier may request revocation .................................................. 157
Division 2--Revocation by Secretary
158
138
Grounds for revocation--general .................................................. 158
139
Grounds for revocation--overdue relevant Commonwealth
liability .......................................................................................... 160
140
Notice of revocation ...................................................................... 160
Division 3--Other provisions
162
141
Export operations must not be carried out after registration of
establishment revoked ................................................................... 162
142
Secretary may require action to be taken after registration
revoked .......................................................................................... 162
Part 7--Obligations of occupiers of registered establishments
164
143
Export operations not covered by registration must not be
carried out ...................................................................................... 164
144
Conditions of registration must not be contravened ...................... 164
145
Additional or corrected information in relation to application
for registration etc.......................................................................... 166
146
Notice of changes to occupier of registered establishment ............ 167
147
Notice of person ceasing to be occupier of registered
establishment ................................................................................. 168
Part 8--Other matters
169
148
Register of registered establishments ............................................ 169
Chapter 5--Approved arrangements
170
Part 1--Introduction
170
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Export Control Bill 2019
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149
Simplified outline of this Chapter .................................................. 170
Part 2--Approval of proposed arrangement
171
150
Application for approval of proposed arrangement ....................... 171
151
Secretary must decide whether to approve proposed
arrangement ................................................................................... 171
152
Conditions of approved arrangement ............................................. 173
153
Notice of decision .......................................................................... 174
154
Period of effect of approved arrangement ..................................... 174
Part 3--Renewal of approved arrangement
176
155
Application to renew approved arrangement ................................. 176
156
Secretary must decide whether to renew approved
arrangement ................................................................................... 176
157
Conditions of renewed approved arrangement .............................. 178
158
Notice of decision .......................................................................... 179
Part 4--Variation of approved arrangement
180
Division 1--Variations by holder
180
Subdivision A--Non-significant variations
180
159
Holder may make non-significant variations of approved
arrangement ................................................................................... 180
160
Date of effect of varied approved arrangement ............................. 181
Subdivision B--Significant variations and variation of conditions
181
161
Application by holder for approval of approved alternative
regulatory arrangement or other significant variation or to
vary conditions .............................................................................. 181
162
Notice of variation ......................................................................... 183
163
Varied approved arrangement must not be implemented
unless variation approved etc......................................................... 183
Subdivision C--Matters relating to whether proposed variation of
approved arrangement is significant
184
164
Matters to which regard must be had in considering whether
proposed variation of approved arrangement is significant ........... 184
Division 2--Variation required or made by Secretary
186
165
Secretary may require approved arrangement to be varied or
make certain variations of approved arrangement ......................... 186
166
Variations required by the Secretary ............................................. 188
167
Varied approved arrangement must not be implemented
unless approved etc. ....................................................................... 190
168
Notice of variations made by the Secretary ................................... 190
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Part 5--Suspension of approved arrangement
192
Division 1--Suspension requested by holder
192
169
Holder may request suspension ..................................................... 192
170
Request to revoke suspension ........................................................ 193
Division 2--Suspension by Secretary
194
171
Grounds for suspension--general .................................................. 194
172
Grounds for suspension--overdue relevant Commonwealth
liability .......................................................................................... 196
173
Notice of suspension ...................................................................... 197
174
Period of suspension ...................................................................... 198
175
Revocation of suspension .............................................................. 198
Division 3--Other provisions
199
176
Effect of suspension ...................................................................... 199
177
Export operations must not be carried out while approved
arrangement suspended.................................................................. 199
Part 6--Revocation of approved arrangement
201
Division 1--Revocation requested by holder
201
178
Holder may request revocation ...................................................... 201
Division 2--Revocation by Secretary
202
179
Grounds for revocation--general .................................................. 202
180
Grounds for revocation--overdue relevant Commonwealth
liability .......................................................................................... 204
181
Notice of revocation ...................................................................... 205
Division 3--Other provisions
206
182
Export operations must not be carried out after approved
arrangement revoked ..................................................................... 206
183
Secretary may require action to be taken after approved
arrangement revoked ..................................................................... 206
Part 7--Obligations of holders of approved arrangements
208
184
Conditions of approved arrangement must not be
contravened ................................................................................... 208
185
Additional or corrected information in relation to application
to approve proposed arrangement etc. ........................................... 209
186
Notice of changes to holder of approved arrangement .................. 210
187
Notification of conviction of serious offence ................................ 211
188
Notice of person ceasing to operate business etc. covered by
approved arrangement ................................................................... 212
Chapter 6--Export licences
214
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Export Control Bill 2019
No. , 2019
Part 1--Introduction
214
189
Simplified outline of this Chapter .................................................. 214
Part 2--Grant of export licence
216
190
Application for export licence ....................................................... 216
191
Secretary must decide whether to grant export licence .................. 216
192
Conditions of export licence .......................................................... 218
193
Matters to be stated in export licence ............................................ 218
194
Period of effect of export licence ................................................... 219
Part 3--Renewal of export licence
221
195
Application to renew export licence .............................................. 221
196
Secretary must decide whether to renew export licence ................ 221
197
Conditions of renewed export licence ........................................... 223
198
Matters to be stated in renewed export licence .............................. 224
Part 4--Variation of export licence
225
Division 1--Application by holder
225
199
Application by holder for variation of export licence .................... 225
200
Notice of variation ......................................................................... 226
Division 2--Variation by Secretary
227
201
Secretary may make variations in relation to export licence ......... 227
202
Notice of variation ......................................................................... 229
Part 5--Suspension of export licence
230
Division 1--Suspension requested by holder
230
203
Holder may request suspension ..................................................... 230
204
Request to revoke suspension ........................................................ 230
Division 2--Suspension by Secretary
232
205
Grounds for suspension--general .................................................. 232
206
Grounds for suspension--overdue relevant Commonwealth
liability .......................................................................................... 234
207
Notice of suspension ...................................................................... 235
208
Period of suspension ...................................................................... 236
209
Revocation of suspension .............................................................. 236
Division 3--Other provisions
237
210
Effect of suspension ...................................................................... 237
Part 6--Revocation of export licence
238
Division 1--Revocation requested by holder
238
No. , 2019
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xi
211
Holder may request revocation ...................................................... 238
Division 2--Revocation by Secretary
239
212
Grounds for revocation--general .................................................. 239
213
Grounds for revocation--overdue relevant Commonwealth
liability .......................................................................................... 240
214
Notice of revocation ...................................................................... 241
Division 3--Other provisions
243
215
Export operations must not be carried out after export licence
revoked .......................................................................................... 243
216
Secretary may require action to be taken after export licence
revoked .......................................................................................... 243
Part 7--Obligations of holders of export licences
245
217
Conditions of export licence must not be contravened .................. 245
218
Additional or corrected information in relation to application
for licence etc. ............................................................................... 246
219
Notice of changes to holder of export licence................................ 247
Part 8--Other matters
249
220
Persons who participate in the management or control of
another person's export business ................................................... 249
221
Secretary's powers in relation to associates of holder of
export licence ................................................................................ 250
222
Secretary may give directions to holder of export licence ............. 251
Chapter 7--Export permits
253
Part 1--Introduction
253
223
Simplified outline of this Chapter .................................................. 253
Part 2--Issue of export permit
254
224
Application for export permit ........................................................ 254
225
Secretary must decide whether to issue export permit ................... 254
226
Requirements for export permit ..................................................... 255
227
Conditions of export permit ........................................................... 255
228
Period of effect of export permit ................................................... 256
Part 3--Variation, suspension and revocation of export permit
257
229
Secretary may vary export permit or conditions of permit ............ 257
230
Period of effect of varied export permit ......................................... 258
231
Secretary may suspend export permit ............................................ 258
232
Effect of suspension ...................................................................... 259
233
Secretary may revoke export permit .............................................. 259
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Export Control Bill 2019
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Part 4--Other matters
261
234
Secretary may require assessment of goods ................................... 261
235
Additional or corrected information in relation to application
for export permit etc. ..................................................................... 261
236
Return of export permit ................................................................. 262
237
Notification that goods not to be exported ..................................... 263
Part 5--Applications for export permits
264
238
Applications to which this Part applies .......................................... 264
239
Requirements for applications ....................................................... 264
240
Additional or corrected information .............................................. 265
241
Powers of Secretary in relation to application ............................... 266
Chapter 8--Other matters relating to export
267
Part 1--Notices of intention to export
267
Division 1--Introduction
267
242
Simplified outline of this Part ........................................................ 267
Division 2--Notices of intention to export
268
243
Notice of intention to export--general requirements ..................... 268
244
Additional or corrected information .............................................. 269
Part 2--Trade descriptions
270
Division 1--Introduction
270
245
Simplified outline of this Part ........................................................ 270
Division 2--Trade descriptions for prescribed goods
271
246
Meaning of
trade description
........................................................ 271
247
When a trade description is applied to goods ................................ 271
248
Rules may make provision in relation to trade descriptions .......... 272
249
Conduct that contravenes rules ...................................................... 272
250
Alteration of or interference with trade description ....................... 273
Division 3--False trade descriptions for prescribed goods
275
251
Meaning of
false trade description
................................................ 275
252
False trade description must not be applied to prescribed
goods ............................................................................................. 275
253
Goods with false trade description must not be exported etc. ........ 276
Part 3--Official marks
278
Division 1--Introduction
278
254
Simplified outline of this Part ........................................................ 278
No. , 2019
Export Control Bill 2019
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Division 2--Rule-making powers
279
255
Official marks ................................................................................ 279
256
Marks resembling official marks ................................................... 279
257
Official marking devices ............................................................... 280
Division 3--Offences and civil penalty provisions
281
258
Conduct that contravenes rules ...................................................... 281
259
Applying a false, misleading or deceptive official mark to
goods ............................................................................................. 281
260
Applying a false, misleading or deceptive official mark to a
document ....................................................................................... 282
261
Conduct that results in official mark applied to goods being
altered to be false, misleading or deceptive ................................... 282
262
Conduct that results in official mark applied to a document
being altered to be false, misleading or deceptive ......................... 283
Part 4--Tariff rate quotas
285
Division 1--Introduction
285
263
Simplified outline of this Part ........................................................ 285
Division 2--Tariff rate quota systems
286
264
Tariff rate quota systems ............................................................... 286
Chapter 9--Powers and officials
287
Part 1--Audits
287
Division 1--Introduction
287
265
Simplified outline of this Part ........................................................ 287
Division 2--General
288
266
Audits of export operations ........................................................... 288
267
Audits in relation to persons performing functions or
exercising powers under this Act ................................................... 290
268
Single audit or program of audits may be required ........................ 291
269
Relevant person for an audit .......................................................... 291
270
Conduct of audit ............................................................................ 292
271
Relevant person for an audit must provide assistance ................... 293
272
Powers of auditors ......................................................................... 293
Division 3--Approved auditors
295
273
Secretary may approve persons to conduct audits ......................... 295
274
Rules may provide for classes of persons to be auditors................ 296
275
Approved auditors may charge fees ............................................... 296
Part 2--Assessment of goods
297
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Export Control Bill 2019
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Division 1--Introduction
297
276
Simplified outline of this Part ........................................................ 297
Division 2--General
298
277
Circumstances in which an assessment may be carried out
etc. ................................................................................................. 298
278
Relevant person for an assessment of goods .................................. 299
279
Process for carrying out an assessment of goods etc. .................... 299
280
Powers that may be exercised in carrying out an assessment
of goods ......................................................................................... 300
Division 3--Approved assessors
302
281
Secretary may approve persons to carry out assessments of
goods ............................................................................................. 302
282
Rules may provide for classes of persons to be assessors .............. 303
283
Approved assessors may charge fees ............................................. 303
Part 3--Powers of the Secretary
304
Division 1--Introduction
304
284
Simplified outline of this Part ........................................................ 304
Division 2--Powers of the Secretary
306
285
Power to require information or documents .................................. 306
286
Power to arrange for certain decisions to be made by
computer programs ........................................................................ 308
287
Rules may authorise Commonwealth to enter into
arrangements under which money may be paid for certain
purposes ......................................................................................... 308
288
Delegation and subdelegation ........................................................ 309
289
Minister may give directions to Secretary ..................................... 313
Part 4--Authorised officers
314
Division 1--Introduction
314
290
Simplified outline of this Part ........................................................ 314
Division 2--Authorisation
316
291
Authorisation of persons to be authorised officers ........................ 316
292
Conditions of authorisation ........................................................... 318
293
Third party authorised officers must not contravene
conditions of authorisation ............................................................ 319
294
Arrangements for State or Territory officers or employees to
be authorised officers .................................................................... 320
Division 3--Variation, suspension and revocation of
authorisation
321
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Subdivision A--Variation, suspension and revocation on
Secretary's own initiative
321
295
Variation of authorisation .............................................................. 321
296
Suspension of authorisation ........................................................... 322
297
Revocation of authorisation ........................................................... 323
298
Notice of proposed action must be given to third party
authorised officer ........................................................................... 324
Subdivision B--Variation, suspension and revocation on
application or request by third party authorised
officer
324
298A
Application for variation of authorisation ...................................... 324
298B
Additional or corrected information .............................................. 326
298C
Request for suspension of authorisation ........................................ 327
298D
Request for revocation of authorisation ......................................... 328
Subdivision C--Other provisions
328
299
Secretary may request notification of certain events by
suspended third party authorised officer ........................................ 328
Division 4--Functions and powers
330
300
Rules may confer functions or powers on authorised officers ....... 330
301
Functions and powers of authorised officers ................................. 330
302
Third party authorised officer must not contravene direction ........ 331
303
Certain authorised officers may charge fees .................................. 331
304
Direction to assist persons performing functions etc. under
this Act .......................................................................................... 332
305
Direction to deal with non-compliance with the requirements
of this Act etc. ............................................................................... 332
Division 5--Miscellaneous
338
306
Identity cards ................................................................................. 338
307
Offence--failure to return identity card ........................................ 338
308
Certain goods or services must not be provided to, or
received by, authorised officers ..................................................... 339
309
General provisions relating to directions ....................................... 340
Part 5--Accredited veterinarians and approved export
programs
342
Division 1--Introduction
342
310
Simplified outline of this Part ........................................................ 342
Division 2--Approved export programs
344
311
Approved export programs ............................................................ 344
312
Accreditation of veterinarians ........................................................ 345
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313
Secretary may direct authorised officers to carry out certain
export operations in approved export program .............................. 346
314
Secretary may direct authorised officer to monitor or review
export operations in approved export programs ............................ 346
Division 3--Offences and civil penalty provisions
348
315
Offence--person other than accredited veterinarian or
authorised officer carrying out export operations in approved
export program .............................................................................. 348
316
Strict liability offence--failure to keep records or provide
reports in relation to approved export program ............................. 348
317
Strict liability offence--failure to remedy deficiency in
carrying out approved export program .......................................... 348
318
Offence--failure to ensure accredited veterinarian is
engaged to carry out relevant export operations in approved
export program .............................................................................. 349
319
Strict liability offence--contravening requirement to allow
accredited veterinarian etc. to accompany eligible live
animals during transport to overseas destination ........................... 349
320
Person must not obstruct or hinder accredited veterinarians
etc. carrying out export operations in approved export
program ......................................................................................... 350
321
Strict liability offence--contravening requirement to provide
reasonable facilities and assistance to accredited veterinarian
etc. ................................................................................................. 350
Division 4--Extended geographical operation of offences
352
322
Extended geographical operation of offences ................................ 352
Chapter 10--Compliance and enforcement
353
Part 1--Introduction
353
323
Simplified outline of this Part ........................................................ 353
324
Modified meaning of
authorised officer
........................................ 353
Part 2--Monitoring
354
Division 1--Introduction
354
325
Simplified outline of this Part ........................................................ 354
Division 2--Monitoring under Part 2 of the Regulatory Powers
Act
355
326
Basic monitoring powers under Part 2 of the Regulatory
Powers Act .................................................................................... 355
327
Modifications of Part 2 of the Regulatory Powers Act .................. 356
Part 3--Investigation
358
No. , 2019
Export Control Bill 2019
xvii
Division 1--Introduction
358
328
Simplified outline of this Part ........................................................ 358
Division 2--Investigating under Part 3 of the Regulatory Powers
Act
359
329
Basic investigation powers under Part 3 of the Regulatory
Powers Act .................................................................................... 359
330
Modifications of Part 3 of the Regulatory Powers Act .................. 360
Part 4--Entry to adjacent premises
362
Division 1--Introduction
362
331
Simplified outline of this Part ........................................................ 362
332
Modified meaning of
premises
...................................................... 362
Division 2--Entering adjacent premises to gain access to other
premises
363
333
Entering adjacent premises to gain access to other premises ......... 363
334
Entry under adjacent premises warrant .......................................... 363
Division 3--Adjacent premises warrants
364
335
Application and issue of adjacent premises warrant ...................... 364
Division 4--Obligations and powers of authorised officers
366
336
Consent .......................................................................................... 366
337
Announcement before entry under warrant ................................... 366
338
Authorised officer to be in possession of warrant .......................... 367
339
Details of warrant etc. to be provided ............................................ 367
340
Use of force in executing a warrant ............................................... 368
Division 5--Appropriate person's rights and responsibilities
369
341
Right to observe execution of warrant ........................................... 369
342
Responsibility to provide facilities and assistance ......................... 369
Division 6--Powers of issuing officers
370
343
Powers of issuing officers .............................................................. 370
Part 5--Entering and exercising powers on premises without a
warrant or consent
371
Division 1--Introduction
371
344
Simplified outline of this Part ........................................................ 371
345
Premises to which this Part applies................................................ 371
Division 2--Monitoring and searching relevant premises
372
346
Monitoring relevant premises ........................................................ 372
347
Offence-related searches and seizures ........................................... 373
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Division 3--Obligations and powers of authorised officers
375
348
Announcement before entry .......................................................... 375
349
Use of force in entering premises .................................................. 375
Division 4--Appropriate person's rights and responsibilities
376
350
Right to observe exercise of powers .............................................. 376
351
Responsibility to provide facilities and assistance ......................... 376
Part 6--Powers in emergency situations
377
Division 1--Introduction
377
352
Simplified outline of this Part ........................................................ 377
Division 2--Powers that may be exercised in or on premises in
emergency situations
378
353
Securing evidential material without consent or warrant in
emergency situation ....................................................................... 378
354
Stopping and searching conveyance without warrant in
emergency situation ....................................................................... 378
Part 7--Civil penalties
381
Division 1--Introduction
381
355
Simplified outline of this Part ........................................................ 381
Division 2--Civil penalties under Part 4 of the Regulatory
Powers Act
382
356
Basic operation of civil penalties under Part 4 of the
Regulatory Powers Act .................................................................. 382
Part 8--Infringement notices
383
Division 1--Introduction
383
358
Simplified outline of this Part ........................................................ 383
Division 2--Infringement notices under Part 5 of the Regulatory
Powers Act
384
359
Basic provisions for infringement notices under Part 5 of the
Regulatory Powers Act .................................................................. 384
360
Modifications of Part 5 of the Regulatory Powers Act .................. 386
Part 9--Enforceable undertakings
387
Division 1--Introduction
387
361
Simplified outline of this Part ........................................................ 387
Division 2--Accepting and enforcing undertakings under Part 6
of the Regulatory Powers Act
388
No. , 2019
Export Control Bill 2019
xix
362
Enforceable undertakings .............................................................. 388
Part 10--Injunctions
389
Division 1--Introduction
389
363
Simplified outline of this Part ........................................................ 389
Division 2--Injunctions under Part 7 of the Regulatory Powers
Act
390
364
Injunctions ..................................................................................... 390
Part 10A--Liability of executive officers and adverse publicity
orders
391
364A
Simplified outline of this Part ........................................................ 391
364B
Criminal liability for executive officers of bodies corporate ......... 391
364C
Civil liability for executive officers of bodies corporate ............... 394
364D
Civil penalty--indemnification of executive officers .................... 397
364E
Certain indemnities not authorised and certain documents
void ................................................................................................ 398
364F
Adverse publicity orders ................................................................ 398
Part 11--Miscellaneous
400
Division 1--Introduction
400
365
Simplified outline of this Part ........................................................ 400
Division 2--Persons assisting authorised officers
401
366
Persons assisting authorised officers ............................................. 401
Division 3--Civil penalty provisions for false or misleading
information or documents
402
367
Civil penalty provision for false or misleading statements in
applications .................................................................................... 402
368
Civil penalty provision for false or misleading information .......... 402
369
Civil penalty provision for false or misleading documents ............ 403
Division 4--General rules about offences and civil penalty
provisions
405
370
Physical elements of offences ........................................................ 405
371
Contravening an offence provision or a civil penalty
provision ........................................................................................ 405
Division 5--Fit and proper person test
406
372
Fit and proper person test .............................................................. 406
373
Rules may prescribe kinds of persons that are required to be
fit and proper persons for the purposes of Chapter 5 or 6 .............. 409
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374
Notification of conviction of offence or order to pay
pecuniary penalty........................................................................... 409
Chapter 11--Miscellaneous
412
Part 1--Matters relating to applications
412
Division 1--Introduction
412
375
Simplified outline of this Part ........................................................ 412
Division 2--Matters relating to certain applications
413
376
Applications to which this Division applies .................................. 413
377
Requirements for applications ....................................................... 413
378
Additional or corrected information .............................................. 414
379
Dealing with applications .............................................................. 415
Part 1A--Alternative regulatory arrangements
420
Division 1--Introduction
420
379A
Simplified outline of this Part ........................................................ 420
Division 2--Alternative regulatory arrangements
421
379B
Application to approve alternative regulatory arrangement ........... 421
379C
Secretary must decide whether to approve alternative
regulatory arrangement .................................................................. 422
Part 2--Review of decisions
424
Division 1--Introduction
424
380
Simplified outline of this Part ........................................................ 424
Division 2--Review of decisions
425
381
Reviewable decisions .................................................................... 425
382
Notice of decision .......................................................................... 434
383
Internal review of reviewable decisions ........................................ 435
384
Secretary may require further information from applicants ........... 436
385
Review by the Administrative Appeals Tribunal ........................... 437
386
Review of decisions relating to tariff rate quota entitlements ........ 437
Part 3--Confidentiality of information
439
Division 1--Introduction
439
387
Simplified outline of this Part ........................................................ 439
Division 2--Authorised uses and disclosures
440
388
Authorisation to use or disclose protected information in
performing functions or exercising powers under this Act ............ 440
No. , 2019
Export Control Bill 2019
xxi
389
Authorisation to use or disclose certain protected information
for secondary permissible purposes ............................................... 440
390
Secretary may authorise use or disclosure of certain
protected information for secondary permissible purposes ............ 441
391
Authorisation to use or disclose sensitive information or
certain other protected information for secondary permissible
purposes ......................................................................................... 442
392
Authorisation to use or disclose protected information for
purposes of proceedings ................................................................ 443
393
Authorisation to use or disclose protected information for
purposes of enforcement-related activity ....................................... 443
394
Authorisation to use or disclose protected information if
required by another Australian law ................................................ 444
395
Authorisation to disclose protected information to person to
whom information relates, or to use or disclose protected
information with consent ............................................................... 444
396
Authorisation to disclose protected information to person
who provided information ............................................................. 444
Division 3--Offences
445
397
Unauthorised use or disclosure of protected information .............. 445
Part 4--Cost recovery
446
Division 1--Introduction
446
398
Simplified outline of this Part ........................................................ 446
Division 2--Fees
447
399
Fees and other rules for fee-bearing activities ............................... 447
Division 3--Payment of cost-recovery charges
448
400
Paying cost-recovery charges ........................................................ 448
401
Person liable to pay cost-recovery charges .................................... 448
402
Notional payments by the Commonwealth .................................... 448
Division 4--Unpaid cost-recovery charges
449
403
Late payment fee ........................................................................... 449
404
Recovery of cost-recovery charges ................................................ 449
Division 5--Miscellaneous
450
405
Secretary may remit or refund cost-recovery charges .................... 450
406
Secretary may direct that activities not be carried out ................... 450
Part 5--Records
451
Division 1--Introduction
451
407
Simplified outline of this Part ........................................................ 451
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Export Control Bill 2019
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Division 2--Records
452
408
Requirements to retain records ...................................................... 452
Part 6--Miscellaneous
454
Division 1--Introduction
454
409
Simplified outline of this Part ........................................................ 454
Division 2--Taking, testing and analysing samples
455
410
Methods for taking, testing and analysing certain samples ............ 455
411
Storage of samples ......................................................................... 455
412
Test or analysis may result in destruction or reduction in
value of sample .............................................................................. 455
413
Appointment of analyst ................................................................. 456
414
Analyst may give certificate .......................................................... 456
415
Admission of analyst's certificate in proceedings ......................... 457
Division 3--Forfeiture of goods
459
416
Forfeiture of goods ........................................................................ 459
Division 4--Damaged and destroyed goods etc.
460
417
Person complying with direction or request must not damage
or destroy goods ............................................................................ 460
418
Goods seized in certain circumstances may be destroyed .............. 460
419
Compensation for damaged or destroyed goods ............................ 461
420
Claims for, and amount of, compensation ..................................... 462
Division 5--Partnerships, unincorporated associations and
trusts
464
421
Treatment of partnerships .............................................................. 464
422
Treatment of unincorporated associations ..................................... 464
423
Treatment of trusts ......................................................................... 465
Division 6--Matters relating to export of livestock
467
424
Report to Parliament about export of livestock ............................. 467
Division 7--Miscellaneous
469
425
Compensation for acquisition of property ..................................... 469
426
Privilege against self-incrimination ............................................... 469
427
Hindering compliance with the Act etc. ........................................ 470
427A
Influencing a person performing functions or duties or
exercising powers .......................................................................... 471
428
Power or requirement to do or cause a thing to be done ................ 471
429
Arrangements with States and Territories to assist in carrying
out this Act .................................................................................... 472
430
Protection from civil proceedings .................................................. 472
No. , 2019
Export Control Bill 2019
xxiii
431
Circumstances in which relevant Commonwealth liability of
a person is taken to have been paid................................................ 473
432
Rules .............................................................................................. 473
No. , 2019
Export Control Bill 2019
1
A Bill for an Act to provide for the control of the
1
export of certain goods, and for related purposes
2
The Parliament of Australia enacts:
3
Chapter 1--Preliminary
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
Export Control Act 2019.
8
Chapter 1
Preliminary
Part 1
Preliminary
Section 2
2
Export Control Bill 2019
No. , 2019
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
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.
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.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of this Act
13
The objects of this Act are the following:
14
(a) to ensure that goods that are exported:
15
(i) meet relevant importing country requirements to enable
16
and maintain overseas market access for goods exported
17
from Australia; and
18
(ii) comply with government or industry standards or
19
requirements relating to the goods; and
20
Preliminary
Chapter 1
Preliminary
Part 1
Section 4
No. , 2019
Export Control Bill 2019
3
(iii) are traceable and, if necessary, can be recalled;
1
(b) to ensure the integrity of goods that are exported;
2
(c) to ensure that trade descriptions for goods that are exported
3
are accurate;
4
(d) to give effect to Australia's rights and obligations relating to
5
goods that are exported under any international agreements to
6
which Australia is a party.
7
4 Simplified outline of this Act
8
This Act creates a framework for regulating the export of goods,
9
including agricultural products and food, from Australian territory.
10
This Act includes provisions about the application of this Act and
11
the relationship of this Act with State and Territory laws.
12
Certain goods are prohibited absolutely from being exported from
13
Australian territory.
14
The Minister may, by legislative instrument (a temporary
15
prohibition determination), determine:
16
(a)
that the export of a specified kind of goods (including
17
prescribed goods) from Australian territory, or from a
18
part of Australian territory, is prohibited absolutely for a
19
specified period of up to 6 months; or
20
(b)
that the export of a specified kind of goods (including
21
prescribed goods) from Australian territory, or from a
22
part of Australian territory, to a specified place is
23
prohibited for a specified period of up to 6 months.
24
The Minister may make a temporary prohibition determination
25
only if the Minister is satisfied that the determination is necessary:
26
(a)
to protect human, animal or plant life or health; or
27
(b)
to secure compliance with an Australian law (other than
28
this Act).
29
The rules may prohibit the export of prescribed goods from
30
Australian territory, or from a part of Australian territory, unless
31
Chapter 1
Preliminary
Part 1
Preliminary
Section 4
4
Export Control Bill 2019
No. , 2019
prescribed conditions are complied with. Conditions may be
1
prescribed for the purpose of ensuring that importing country
2
requirements are met or government or industry standards or
3
requirements are complied with, or to give effect to Australia's
4
international obligations. The rules may require, for example:
5
(a)
export operations in relation to prescribed goods to be
6
carried out at an accredited property or a registered
7
establishment, or in accordance with an approved
8
arrangement or an export licence; or
9
(b)
a person to hold an approved arrangement or an export
10
licence covering prescribed goods; or
11
(c)
a trade description or an official mark to be applied to
12
certain goods; or
13
(d)
a notice of intention to export a consignment of
14
prescribed goods to be given; or
15
(e)
a government certificate or an export permit to be in
16
force for certain goods.
17
The Secretary may grant an exemption from one or more
18
provisions of this Act in relation to prescribed goods that are to be
19
exported in certain circumstances.
20
A government certificate may be issued in relation to prescribed
21
goods and non-prescribed goods that are to be, or that have been,
22
exported.
23
The rules may make provision for and in relation to the
24
establishment and administration of a system, or systems, of tariff
25
rate quotas for the export of certain goods.
26
Authorised officers (including third party authorised officers) and
27
other persons may exercise certain powers, including the
28
following:
29
(a)
conducting audits of export operations and audits in
30
relation to the performance of functions and the exercise
31
of powers under this Act;
32
(b)
carrying out assessments of goods;
33
(c)
giving directions;
34
Preliminary
Chapter 1
Preliminary
Part 1
Section 5
No. , 2019
Export Control Bill 2019
5
(d)
carrying out approved export programs for the purpose
1
of ensuring the health and welfare of certain live
2
animals.
3
A range of compliance and enforcement powers are provided,
4
including by applying the
Regulatory Powers (Standard
5
Provisions) Act 2014
.
6
Certain decisions under this Act may be reviewed internally and by
7
the Administrative Appeals Tribunal.
8
The use and disclosure of information is regulated.
9
Fees may be charged, on a cost-recovery basis, in relation to
10
activities carried out by, or on behalf of, the Commonwealth in the
11
performance of functions or the exercise of powers under this Act.
12
The Secretary may make rules for the purposes of this Act. The
13
rules are a disallowable legislative instrument.
14
5 Act binds the Crown
15
(1) This Act binds the Crown in each of its capacities.
16
(2) This Act does not make the Crown liable to be:
17
(a) prosecuted for an offence; or
18
(b) subject to civil proceedings for a civil penalty order under
19
Part 4 of the Regulatory Powers Act; or
20
(c) given an infringement notice under Part 5 of the Regulatory
21
Powers Act.
22
6 Application of this Act in Australia
23
General
24
(1) Subject to subsections (2) to (4), this Act applies in Australia, and
25
in the exclusive economic zone adjacent to Australia, and on or in
26
the continental shelf adjacent to Australia, in relation to:
27
Chapter 1
Preliminary
Part 1
Preliminary
Section 7
6
Export Control Bill 2019
No. , 2019
(a) all persons or bodies (including foreign persons or bodies);
1
and
2
(b) all aircraft (including foreign aircraft); and
3
(c) all vessels (including foreign vessels).
4
Note:
A reference to Australia includes a reference to the coastal sea of
5
Australia. See section 15B of the
Acts Interpretation Act 1901
.
6
Limited application in the exclusive economic zone
7
(2) This Act applies in an area that is, or is part of, the exclusive
8
economic zone adjacent to Australia in relation to a foreign person
9
or body, a foreign aircraft or a foreign vessel only in relation to the
10
export of goods that have been taken in that area.
11
(3) However, subsection (2) does not prevent the exercise of powers
12
under this Act in the contiguous zone of Australia (including the
13
external Territories) in relation to a foreign person or body, a
14
foreign aircraft or a foreign vessel:
15
(a) to investigate a contravention of this Act that occurred in
16
Australia; or
17
(b) to prevent a contravention of this Act occurring in Australia.
18
Limited application on or in the continental shelf
19
(4) This Act applies in an area that:
20
(a) is on or in the continental shelf adjacent to Australia; and
21
(b) is not within the exclusive economic zone adjacent to
22
Australia;
23
in relation to a foreign person or body, a foreign aircraft or a
24
foreign vessel only in relation to the export of natural resources
25
that have been harvested on the continental shelf in that area.
26
Note:
For
natural resources
, see section 12.
27
(5) This section has effect subject to section 10.
28
7 Limited application of this Act outside Australia
29
(1) This Act applies in an area covered by subsection (2) in relation to
30
the following:
31
Preliminary
Chapter 1
Preliminary
Part 1
Section 8
No. , 2019
Export Control Bill 2019
7
(a) Australian nationals;
1
(b) Australian residents;
2
(c) the Commonwealth;
3
(d) Commonwealth bodies;
4
(e) Australian aircraft;
5
(f) Australian vessels;
6
(g) members of crews of Australian aircraft and Australian
7
vessels (including persons in charge of Australian aircraft or
8
Australian vessels).
9
(2) This subsection covers an area that:
10
(a) is outside the outer limits of the exclusive economic zone
11
adjacent to Australia and is not on or in the continental shelf
12
adjacent to Australia; and
13
(b) is not an external Territory, or the exclusive economic zone
14
adjacent to an external Territory, or on or in the continental
15
shelf adjacent to an external Territory.
16
8 Extension of this Act to external Territories and other areas
17
(1) Subject to subsection (2), this Act does not extend to the external
18
Territories.
19
(2) The rules may extend this Act, or any provisions of this Act:
20
(a) to an external Territory that is prescribed by the rules; or
21
(b) to any of the following areas that are prescribed by the rules:
22
(i) the whole or a part of the exclusive economic zone
23
adjacent to an external Territory;
24
(ii) the whole or a part of the area that is on or in the
25
continental shelf adjacent to an external Territory and is
26
not within the exclusive economic zone adjacent to that
27
Territory; or
28
(c) to an area outside the Australian fishing zone in relation to
29
which the
Fisheries Management Act 1991
applies under
30
regulations made for the purposes of section 8 of that Act.
31
Chapter 1
Preliminary
Part 1
Preliminary
Section 9
8
Export Control Bill 2019
No. , 2019
(3) The rules may extend this Act, or any provisions of this Act, to an
1
area adjacent to an external Territory under subparagraph (2)(b)(i)
2
or (ii) whether or not this Act extends to that external Territory.
3
Note 1:
The reference to this Act includes a reference to instruments made
4
under this Act (see the definition of
this Act
in section 12).
5
Note 2:
A provision of this Act that extends to an external Territory is taken to
6
have effect in, and in relation to, the coastal sea of the Territory as if
7
that coastal sea were part of the Territory (see subsection 15B(3) of
8
the
Acts Interpretation Act 1901
).
9
9 Application of this Act in external Territories and other areas
10
General
11
(1) If a provision of this Act extends to an external Territory or an area
12
adjacent to an external Territory under subsection 8(2), then
13
subject to subsections (2) to (5), the provision applies in the
14
external Territory or the adjacent area in relation to:
15
(a) all persons or bodies (including foreign persons or bodies);
16
and
17
(b) all aircraft (including foreign aircraft); and
18
(c) all vessels (including foreign vessels).
19
Limited application in the contiguous zone
20
(2) If a provision of this Act extends to an external Territory under
21
paragraph 8(2)(a), nothing in this Act prevents the exercise of
22
powers under this Act in the contiguous zone adjacent to the
23
external Territory (or in the contiguous zone adjacent to Australia)
24
in relation to a foreign person or body, a foreign aircraft or a
25
foreign vessel:
26
(a) to investigate a contravention of this Act that occurred in that
27
Territory; or
28
(b) to prevent a contravention of this Act occurring in that
29
Territory.
30
Limited application in the exclusive economic zone
31
(3) If a provision of this Act extends to an area adjacent to an external
32
Territory under subparagraph 8(2)(b)(i), the provision applies in
33
Preliminary
Chapter 1
Preliminary
Part 1
Section 10
No. , 2019
Export Control Bill 2019
9
that area in relation to a foreign person or body, a foreign aircraft
1
or a foreign vessel only in relation to the export of goods that have
2
been taken in that area.
3
(4) However, subsection (3) does not prevent the exercise of powers
4
under this Act in the contiguous zone adjacent to the external
5
Territory (or in the contiguous zone adjacent to Australia) in
6
relation to a foreign person or body, a foreign aircraft or a foreign
7
vessel for a purpose referred to in paragraph (2)(a) or (b).
8
Limited application on or in the continental shelf
9
(5) If a provision of this Act extends to an area under
10
subparagraph 8(2)(b)(ii), the provision applies in relation to a
11
foreign person or body, a foreign aircraft or a foreign vessel only in
12
relation to the export of natural resources that have been harvested
13
on the continental shelf in that area.
14
Note:
For
natural resources
, see section 12.
15
(6) This section has effect subject to section 10.
16
10 Rights of foreign aircraft and vessels under Convention on the
17
Law of the Sea not affected
18
This Act does not apply to the extent that its application would be
19
inconsistent with the exercise of rights of foreign aircraft or foreign
20
vessels, in accordance with the United Nations Convention on the
21
Law of the Sea, above or in any of the following:
22
(a) the territorial sea of Australia (including the external
23
Territories);
24
(b) the exclusive economic zone of Australia (including the
25
external Territories);
26
(c) waters above the continental shelf of Australia (including the
27
external Territories).
28
11 Concurrent operation of State and Territory laws
29
(1) This Act does not exclude or limit the operation of a law of a State
30
or Territory that is capable of operating concurrently with this Act.
31
Chapter 1
Preliminary
Part 1
Preliminary
Section 11
10
Export Control Bill 2019
No. , 2019
(2) Without limiting subsection (1), this Act does not exclude or limit
1
the concurrent operation of a law of a State or Territory to the
2
extent that:
3
(a) the law makes an act or omission:
4
(i) an offence; or
5
(ii) subject to a civil penalty; and
6
(b) that (or any similar) act or omission is also:
7
(i) an offence against a provision of this Act; or
8
(ii) subject to a civil penalty under this Act.
9
(3) Subsection (2) applies even if the law of the State or Territory does
10
any one or more of the following, in relation to the offence or civil
11
penalty:
12
(a) provides for a penalty that differs from the penalty provided
13
in this Act;
14
(b) provides for fault elements that differ from the fault elements
15
applicable to the offence or civil penalty provision created by
16
this Act;
17
(c) provides for defences or exceptions that differ from the
18
defences or exceptions applicable to the offence or civil
19
penalty provision created by this Act.
20
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 12
No. , 2019
Export Control Bill 2019
11
Part 2--Interpretation
1
Division 1--Definitions
2
12 Definitions
3
In this Act:
4
accredited property
means a property that is accredited under
5
Chapter 3.
6
accredited veterinarian
means a veterinarian who is accredited in
7
accordance with rules made for the purposes of subsection 312(1).
8
adjacent premises warrant
means a warrant issued under
9
section 335.
10
aircraft
means any machine or craft that can derive support in the
11
atmosphere from the reactions of the air, other than the reactions of
12
the air against the earth's surface.
13
animal
includes a dead animal and any part of an animal, but does
14
not include a human or a part of a human, whether the human is
15
dead or alive.
16
animal reproductive material
:
17
(a) means any part of an animal from which another animal can
18
be produced; and
19
(b) includes an embryo, an egg or ovum, and semen.
20
applied
, in relation to a trade description, has the meaning given by
21
section 247.
22
appropriate person
for premises to which an adjacent premises
23
warrant relates, or premises entered under section 346 or 347,
24
means:
25
(a) the occupier of the premises; or
26
(b) another person who apparently represents the occupier.
27
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 12
12
Export Control Bill 2019
No. , 2019
approved arrangement
means an approved arrangement under
1
Chapter 5.
2
approved assessor
:
3
(a) means a person, or a person included in a class of persons,
4
approved under subsection 281(1); and
5
(b) includes a person included in a class of persons specified by
6
rules made for the purposes of section 282.
7
approved auditor
:
8
(a) means a person, or a person included in a class of persons,
9
approved under subsection 273(1); and
10
(b) includes a person included in a class of persons specified by
11
rules made for the purposes of section 274.
12
approved export program
means a program of export operations
13
approved under subsection 311(1).
14
assessor
means:
15
(a) an approved assessor; or
16
(b) an authorised officer whose functions and powers include
17
carrying out an assessment of goods under Part 2 of
18
Chapter 9.
19
associate
of a person has a meaning affected by section 13.
20
auditor
means:
21
(a) an approved auditor; or
22
(b) an authorised officer whose functions and powers include
23
conducting an audit under Part 1 of Chapter 9.
24
Australian aircraft
means an aircraft that is registered under
25
regulations made under the
Civil Aviation Act 1988
.
26
Australia New Zealand Food Standards Code
has the same
27
meaning as in the
Food Standards Australia New Zealand Act
28
1991
.
29
Australian fishing zone
has the same meaning as in the
Fisheries
30
Management Act 1991
.
31
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 12
No. , 2019
Export Control Bill 2019
13
Australian law
means a law of the Commonwealth, or of a State or
1
Territory.
2
Australian national
means:
3
(a) an Australian citizen; or
4
(b) a body corporate established by or under a law of the
5
Commonwealth or of a State or Territory.
6
Australian resident
means:
7
(a) an individual who is usually resident in Australia and whose
8
continued presence in Australia is not subject to a limitation
9
as to time imposed by law; or
10
(b) a body corporate that has its principal place of business in
11
Australia.
12
Australian territory
has the meaning given by section 14.
13
Australian vessel
means an Australian ship within the meaning of
14
the
Shipping Registration Act 1981
.
15
authorised officer
means (except as provided by section 324) a
16
person who is authorised under section 291 to be an authorised
17
officer under this Act.
18
Note:
Section 324 provides a modified meaning of
authorised officer
for the
19
purposes of Chapter 10 (compliance and enforcement).
20
certificate of registration
, for a registered establishment, means the
21
most recent certificate of registration for the establishment given to
22
the occupier of the establishment under Chapter 4.
23
civil penalty provision
has the same meaning as in the Regulatory
24
Powers Act.
25
Commonwealth authorised officer
means an authorised officer
26
who is an officer or employee of a Commonwealth body.
27
Commonwealth body
includes a Department of State, or an
28
authority, of the Commonwealth.
29
conveyance
means any of the following:
30
(a) an aircraft;
31
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 12
14
Export Control Bill 2019
No. , 2019
(b) a vessel;
1
(c) a vehicle;
2
(d) any other means of transport prescribed by the rules.
3
corporation
means a corporation within the meaning of the
4
Corporations Act 2001
.
5
cost-recovery charge
means:
6
(a) a fee prescribed by rules made for the purposes of
7
subsection 399(1) for a fee-bearing activity; or
8
(b) a charge imposed by:
9
(i) the
Export Charges (Imposition--Customs) Act 2015
; or
10
(ii) the
Export Charges (Imposition--Excise) Act 2015
; or
11
(iii) the
Export Charges (Imposition--General) Act 2015
; or
12
(c) a late payment fee relating to a fee or charge described in
13
paragraph (a) or (b).
14
covering
, in relation to goods, includes a bottle, box, capsule, case,
15
container, frame, glass, seal, stopper and wrapper.
16
dishonest
, in relation to conduct engaged in by a person, means
17
dishonest according to the standards of ordinary people.
18
economic consequences for Australia
includes the following:
19
(a) substantial damage to Australia's trading reputation;
20
(b) a restriction on, or the closure of, access to one or more
21
overseas markets for all goods or a kind of goods from
22
Australia.
23
eligible animal reproductive material
means prescribed goods that
24
are animal reproductive material.
25
eligible live animals
means prescribed goods that are live animals.
26
enforcement body
has the same meaning as in the
Privacy Act
27
1988
.
28
enforcement-related activity
has the same meaning as in the
29
Privacy Act 1988
.
30
engage in conduct
means:
31
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 12
No. , 2019
Export Control Bill 2019
15
(a) do an act; or
1
(b) omit to perform an act.
2
entered for export
has the meaning given by section 15.
3
establishment
has the same meaning as premises.
4
evidential material
has the same meaning as in the Regulatory
5
Powers Act.
6
examine
includes count, gauge, grade, measure and weigh.
7
executive officer
of a body corporate means a person, by whatever
8
name called and whether or not a director of the body corporate,
9
who is concerned in, or takes part in, the management of the body
10
corporate.
11
expiry date
:
12
(a) for the accreditation of a property--has the meaning given by
13
subsection 82(4); or
14
(b) for the registration of an establishment--has the meaning
15
given by subsection 115(4); or
16
(c) for an approved arrangement--has the meaning given by
17
subsection 154(4); or
18
(d) for an export licence--has the meaning given by
19
subsection 194(4).
20
export
means export from Australian territory to a place outside
21
Australian territory.
22
Note:
See also section 20 which provides for when goods are exported.
23
export business
means a business that carries out export operations
24
in relation to a kind of goods.
25
export licence
means an export licence granted under Chapter 6.
26
export operations
has the meaning given by section 16.
27
export permit
means an export permit issued under Part 2 of
28
Chapter 7.
29
false trade description
has the meaning given by section 251.
30
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 12
16
Export Control Bill 2019
No. , 2019
Federal Circuit Court
means the Federal Circuit Court of
1
Australia.
2
Federal Court
means the Federal Court of Australia.
3
fee-bearing activities
has the meaning given by subsection 399(1).
4
fish
means aquatic vertebrates and aquatic invertebrates but does
5
not include mammals or birds.
6
fit for human consumption
means safe and suitable for human
7
consumption.
8
food
includes:
9
(a) any substance or thing of a kind used, or capable of being
10
used, for human consumption (whether it is live, raw,
11
prepared or partly prepared); and
12
(b) any substance or thing of a kind used, or capable of being
13
used, as an ingredient or additive in a substance or thing
14
referred to in paragraph (a);
15
whether or not the substance or thing is in a condition fit for human
16
consumption.
17
foreign aircraft
means an aircraft other than an Australian aircraft.
18
foreign person or body
means any of the following:
19
(a) an individual who is not an Australian national or an
20
Australian resident;
21
(b) a body corporate that is not an Australian national or an
22
Australian resident;
23
(c) a body politic of a foreign country;
24
(d) a trust, where the trustee, or a majority of the trustees, are
25
covered by any or all of the above paragraphs.
26
foreign vessel
means a vessel other than an Australian vessel.
27
goods
means any of the following:
28
(a) an animal or a plant;
29
(b) an article, substance or thing (including reproductive
30
material) derived from an animal or a plant, whether or not in
31
combination with any other article, substance or thing;
32
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 12
No. , 2019
Export Control Bill 2019
17
(c) food;
1
(d) any other article, substance or thing;
2
but does not include narcotic goods within the meaning of the
3
Customs Act 1901
.
4
government certificate
means a certificate (other than a tariff rate
5
quota certificate) in relation to goods that are to be, or that have
6
been, exported and that relates to any of the following:
7
(a) matters in respect of which a country requires certification
8
before goods of that kind may be imported into that country
9
from Australian territory or from a part of Australian
10
territory;
11
(b) requirements of this Act that must be complied with before
12
goods of that kind may be exported;
13
(c) other matters concerning goods of that kind.
14
husbandry activities
, in relation to a live animal, means activities
15
relating to the care and maintenance of the animal (for example,
16
housing, daily monitoring, feeding, cleaning of facilities and
17
administration of medication).
18
importing country requirement
, in relation to goods that are to be
19
imported into a country from Australian territory or from a part of
20
Australian territory, means a requirement of that country that must
21
be met before the goods may be imported into that country from
22
Australian territory or from that part of Australian territory.
23
installation
has the meaning given by section 17.
24
integrity
has the meaning given by section 18.
25
International Plant Protection Convention
means the
26
International Plant Protection Convention, done at Rome on
27
6 December 1951, as in force from time to time.
28
Note:
The Convention is in Australian Treaty Series 1952 No. 5 ([1952]
29
ATS 5) and could in 2019 be viewed in the Australian Treaties
30
Library on the AustLII website (http://www.austlii.edu.au).
31
investigation warrant
means:
32
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 12
18
Export Control Bill 2019
No. , 2019
(a) a warrant issued under section 70 of the Regulatory Powers
1
Act as it applies in relation to evidential material that relates
2
to a provision mentioned in subsection 329(1); or
3
(b) a warrant signed by an issuing officer under section 71 of the
4
Regulatory Powers Act as it applies in relation to evidential
5
material that relates to a provision mentioned in
6
subsection 329(1).
7
issuing body
for a government certificate in relation to a kind of
8
goods means a person or body that may issue a government
9
certificate in relation to goods of that kind under section 63.
10
issuing officer
means:
11
(a) a magistrate; or
12
(b) a Judge of a court of a State or Territory; or
13
(c) a Judge of the Federal Court or the Federal Circuit Court.
14
label
includes a tag, band, ticket, brand and pictorial or other
15
descriptive matter.
16
landing place
means any place where an aircraft can land,
17
including:
18
(a) an area of land or water; and
19
(b) an area on a building or a vessel.
20
late payment fee
has the meaning given by section 403.
21
manager
of a property means the person who is responsible for the
22
day-to-day management of the property.
23
mark
includes a stamp, seal and label.
24
monitoring warrant
means a warrant issued under section 32 of
25
the Regulatory Powers Act as it applies in relation to this Act.
26
natural resources
has the same meaning as in paragraph 4 of
27
Article 77 of the United Nations Convention on the Law of the
28
Sea.
29
Note:
Paragraph 4 of Article 77 of the Convention provides as follows:
30
The natural resources referred to in this Part consist of the mineral and
31
other non-living resources of the seabed and subsoil together with
32
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 12
No. , 2019
Export Control Bill 2019
19
living organisms belonging to sedentary species, that is to say,
1
organisms which, at the harvestable stage, either are immobile on or
2
under the seabed or are unable to move except in constant physical
3
contact with the seabed or the subsoil.
4
nominated export permit issuer
, in relation to a kind of prescribed
5
goods, means a person who:
6
(a) manages or controls export operations in relation to goods of
7
that kind that are covered by an approved arrangement; and
8
(b) is nominated in the approved arrangement as a person who
9
may issue export permits for goods of that kind.
10
Note:
A nominated export permit issuer in relation to a kind of prescribed
11
goods may only issue export permits for goods of that kind if the
12
power to issue export permits for goods of that kind has been
13
subdelegated to the nominated export permit issuer under
14
paragraph 288(2)(c).
15
non-prescribed goods
means goods of a kind that are not
16
prescribed goods.
17
notice of intention to export
means a notice under section 243.
18
occupier
, of an establishment where export operations in relation
19
to goods are, were or will be carried out, has the meaning given by
20
section 19.
21
official mark
means a mark that is an official mark for the
22
purposes of this Act under rules made for the purposes of
23
subsection 255(1).
24
official marking device
has the meaning given by
25
subsection 257(1).
26
permanently prohibited goods
means goods the export of which is
27
prohibited absolutely by Subdivision A of Division 2 of Part 1 of
28
Chapter 2.
29
person
has a meaning affected by sections 421, 422 and 423.
30
personal information
has the same meaning as in the
Privacy Act
31
1988
.
32
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 12
20
Export Control Bill 2019
No. , 2019
plant
means a live plant or a dead plant, and includes any part of a
1
plant.
2
port
includes a harbour.
3
PPSA security interest
means a security interest within the
4
meaning of the
Personal Property Securities Act 2009
and to
5
which that Act applies, other than a transitional security interest
6
within the meaning of that Act.
7
Note 1:
The
Personal Property Securities Act 2009
applies to certain security
8
interests in personal property. See the following provisions of that
9
Act:
10
(a) section 8 (interests to which the Act does not apply);
11
(b) section 12 (meaning of
security interest
);
12
(c) Chapter 9 (transitional provisions).
13
Note 2:
For the meaning of
transitional security interest
, see section 308 of
14
the
Personal Property Securities Act 2009
.
15
premises
includes the following:
16
(a) a structure, building or conveyance;
17
(b) a place (whether or not enclosed or built on), including a
18
place situated underground or under water;
19
(c) a part of a thing referred to in paragraph (a) or (b).
20
Note:
Premises
does not include a conveyance in Part 4 of Chapter 10
21
(compliance and enforcement) (see section 332).
22
prepare
, in relation to goods, includes the following:
23
(a) admission of animals for slaughter, being animals from
24
which goods are to be derived;
25
(b) slaughter or kill animals from which goods are to be derived;
26
(c) dress carcases from which goods are to be derived;
27
(d) take (whether from the wild or otherwise):
28
(i) fish; or
29
(ii) fish from which goods are to be derived;
30
(e) process, pack and store goods;
31
(f) treat goods;
32
(g) handle and load goods.
33
Note:
Take
, in relation to fish, means catch, capture, or harvest (see the
34
definition of
take
in this section).
35
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 12
No. , 2019
Export Control Bill 2019
21
prescribed agriculture law
means a law (other than this Act) that is
1
administered by the Minister and is prescribed by the rules.
2
prescribed export conditions
means conditions prescribed by rules
3
made for the purposes of section 29.
4
prescribed goods
means goods of a kind prescribed by rules made
5
for the purposes of subsection 28(1), but does not include a kind of
6
goods in the circumstances prescribed by rules made for the
7
purposes of subsection 28(4).
8
Note:
The rules may prescribe a class of goods for the purposes of
9
subsection 28(1) or (4).
10
produce
, in relation to goods, includes the following:
11
(a) pick or harvest (whether from the wild or otherwise):
12
(i) goods; or
13
(ii) goods from which goods are to be derived;
14
(b) capture or take (whether from the wild or otherwise):
15
(i) goods other than fish; or
16
(ii) goods (other than fish) from which goods are to be
17
derived;
18
(c) propagate, rear, keep or breed (including as part of
19
aquaculture operations):
20
(i) fish; or
21
(ii) fish from which goods are to be derived;
22
(d) breed, or carry out husbandry activities in relation to:
23
(i) live animals; or
24
(ii) live animals from which goods are to be derived;
25
(e) grow:
26
(i) plants; or
27
(ii) plants from which goods are to be derived.
28
property
has the same meaning as premises.
29
protected information
means information obtained under, or in
30
accordance with, this Act.
31
protected person
has the meaning given by subsection 430(4).
32
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 12
22
Export Control Bill 2019
No. , 2019
registered establishment
means an establishment that is registered
1
under Chapter 4.
2
Regulatory Powers Act
means the
Regulatory Powers (Standard
3
Provisions) Act 2014
.
4
related provision
means the following:
5
(a) a provision of this Act that creates an offence;
6
(b) a civil penalty provision of this Act;
7
(c) a provision of the
Crimes Act 1914
or the
Criminal Code
that
8
relates to this Act and creates an offence.
9
relevant Commonwealth liability
means:
10
(a) a cost-recovery charge that is due and payable; or
11
(b) a pecuniary penalty, or other liability for an amount, imposed
12
by or under a prescribed agriculture law.
13
Note:
A relevant Commonwealth liability of a person is taken to have been
14
paid for the purposes of a provision of this Act in certain
15
circumstances (see section 431).
16
relevant court
means:
17
(a) the Federal Court; or
18
(b) the Federal Circuit Court; or
19
(c) a court of a State or Territory that has jurisdiction in relation
20
to matters arising under this Act.
21
relevant person
:
22
(a) for an audit under Part 1 of Chapter 9--has the meaning
23
given by section 269; or
24
(b) for an assessment of goods under Part 2 of Chapter 9--has
25
the meaning given by section 278; or
26
(c) for a reviewable decision referred to in column 1 of an item
27
in the table in subsection 381(1)--means the person referred
28
to in column 3 of that item; or
29
(d) for a reviewable decision prescribed by rules made for the
30
purposes of subsection 381(2)--means the person specified
31
by the rules as the relevant person for that decision.
32
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 12
No. , 2019
Export Control Bill 2019
23
relevant premises
, in Part 5 of Chapter 10, has the meaning given
1
by section 345.
2
reviewable decision
has the meaning given by subsections 381(1)
3
and (2).
4
rules
means rules made under section 432.
5
secondary permissible purpose
means a purpose of:
6
(a) achieving the objects of this Act; or
7
(b) administering or enforcing any of the following:
8
(i) a prescribed agriculture law;
9
(ii) another Australian law, to the extent that the law relates
10
to public health, food safety, biosecurity, the export of
11
goods from Australian territory, the health and welfare
12
of live animals, or the health and condition of animal
13
reproductive material.
14
Secretary
means the Secretary of the Department.
15
sensitive information
means information or an opinion about an
16
individual's criminal record that is also personal information.
17
State or Territory authorised officer
means an authorised officer
18
who is an officer or employee of a State or Territory body.
19
State or Territory body
includes a Department of State, or an
20
authority, of a State or Territory.
21
take
, in relation to fish, means catch, capture, or harvest.
22
tariff rate quota certificate
means a certificate provided for by
23
rules made for the purposes of section 264.
24
temporary prohibition determination
means a determination made
25
under paragraph 24(1)(a) or (b).
26
third party authorised officer
means a person who is authorised
27
under paragraph 291(6)(a) to be a third party authorised officer
28
under this Act.
29
this Act
includes:
30
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 13
24
Export Control Bill 2019
No. , 2019
(a) legislative instruments made under this Act; and
1
(b) the Regulatory Powers Act as it applies in relation to this
2
Act.
3
trade description
has the meaning given by subsections 246(1) and
4
(2).
5
United Nations Convention on the Law of the Sea
means the
6
United Nations Convention on the Law of the Sea, done at
7
Montego Bay on 10 December 1982, as in force for Australia from
8
time to time.
9
Note:
The Convention is in Australian Treaty Series 1994 No. 31 ([1994]
10
ATS 31) and could in 2019 be viewed in the Australian Treaties
11
Library on the AustLII website (http://www.austlii.edu.au).
12
use
, in relation to information, includes make a record of.
13
vessel
:
14
(a) means any kind of vessel used in navigation by water,
15
however propelled or moved, including the following:
16
(i) a barge or other floating craft;
17
(ii) an air-cushion vehicle, or other similar craft, used
18
wholly or primarily in navigation by water; and
19
(b) includes:
20
(i) an installation; and
21
(ii) any floating structure.
22
13 Meaning of
associate
23
(1)
Associate
of a person (the
first person
) includes each of the
24
following:
25
(a) a person who is or was a consultant, adviser, partner,
26
representative on retainer, employer or employee of:
27
(i) the first person; or
28
(ii) any corporation of which the first person is an officer or
29
employee or in which the first person holds shares;
30
(b) a spouse, de facto partner, child, parent, grandparent,
31
grandchild, sibling, aunt, uncle, niece, nephew or cousin of
32
the first person;
33
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 13
No. , 2019
Export Control Bill 2019
25
(c) a child, parent, grandparent, grandchild, sibling, aunt, uncle,
1
niece, nephew or cousin of a spouse or de facto partner of the
2
first person;
3
(d) any other person not mentioned in paragraph (a), (b) or (c)
4
who is or was:
5
(i) directly or indirectly concerned in; or
6
(ii) in a position to control or influence the conduct of;
7
a business or undertaking of:
8
(iii) the first person; or
9
(iv) a corporation of which the first person is an officer or
10
employee, or in which the first person holds shares;
11
(e) a corporation:
12
(i) of which the first person, or any of the other persons
13
mentioned in paragraphs (a), (b), (c) and (d), is an
14
officer or employee; or
15
(ii) in which the first person, or any of those other persons,
16
holds shares;
17
(f) if the first person is a body corporate--another body
18
corporate that is a related body corporate (within the meaning
19
of the
Corporations Act 2001
) of the first person.
20
(2) Without limiting who is a child of another person for the purposes
21
of this Act, a person is the
child
of another person if the person is:
22
(a) a stepchild or adopted child of the other person; or
23
(b) a child of the other person within the meaning of the
Family
24
Law Act 1975
.
25
(3) Without limiting who is a stepchild of another person for the
26
purposes of this Act, a child of a de facto partner of the other
27
person is the
stepchild
of the other person if the child would be the
28
other person's stepchild except that the other person is not legally
29
married to the partner.
30
(4) Without limiting who is a parent of another person for the purposes
31
of this Act, a person is the
parent
of another person if the other
32
person is a child of the person because of the definition of
child
in
33
subsection (2).
34
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 14
26
Export Control Bill 2019
No. , 2019
(5) For the purposes of this Act, if one person is the child of another
1
person because of the definition of
child
in subsection (2),
2
relationships traced to or through that person are to be determined
3
on the basis that the person is the child of the other person.
4
14 Meaning of
Australian territory
5
A reference in a provision of this Act to
Australian territory
is a
6
reference to:
7
(a) Australia; and
8
(b) the exclusive economic zone adjacent to Australia; and
9
(c) the waters above the continental shelf adjacent to Australia;
10
and
11
(d) each external Territory to which the provision extends under
12
paragraph 8(2)(a); and
13
(e) each area to which the provision extends under
14
subparagraph 8(2)(b)(i); and
15
(f) the waters above each area to which the provision extends
16
under subparagraph 8(2)(b)(ii); and
17
(g) each area to which the provision extends under
18
paragraph 8(2)(c).
19
Note:
Under subsection 8(2), the rules may extend this Act, or any
20
provisions of this Act, to an external Territory and to certain other
21
areas.
22
15 Meaning of
entered for export
23
Goods are
entered for export
if, in the course of the preparation or
24
production of the goods for export, the goods are presented to, or
25
information about the goods is given to:
26
(a) an authorised officer; or
27
(b) another person who is authorised to exercise powers or
28
perform functions under this Act in relation to the goods;
29
for the purpose of the authorised officer or other person exercising
30
powers or performing functions under this Act in relation to the
31
goods.
32
Preliminary
Chapter 1
Interpretation
Part 2
Definitions
Division 1
Section 16
No. , 2019
Export Control Bill 2019
27
16 Meaning of
export operations
1
Export operations
means any of the following:
2
(a) operations to export goods;
3
(b) operations to produce, or prepare, goods for export;
4
(c) operations (other than operations referred to in paragraph (a)
5
or (b)) in relation to goods for export before they are
6
exported;
7
(d) operations in relation to goods that have been exported up
8
until the delivery of the goods to their final overseas
9
destination or, in the case of live animals intended to be
10
slaughtered, up until and including the point of slaughter;
11
(e) any other operations in relation to the export of goods.
12
Examples of operations:
13
(a) for the purposes of paragraph (b)--breeding or carrying out
14
husbandry activities in relation to livestock from which meat for
15
export is to be derived;
16
(b) for the purposes of paragraph (c)--transporting goods, applying a
17
trade description or official mark to goods, carrying out
18
certification functions in relation to goods, and issuing an export
19
permit for a kind of prescribed goods;
20
(c) for the purposes of paragraph (d)--monitoring the goods during
21
their journey to the importing country and up until their delivery
22
to their final overseas destination or, in the case of live animals
23
intended to be slaughtered, up until and including the point of
24
slaughter;
25
(d) for the purposes of paragraph (e)--operations for the purpose of
26
assuring the supply chain relating to certain prescribed goods up
27
until their delivery to their final overseas destination, and
28
manufacturing official marks or official marking devices.
29
Note:
See also section 20 which provides for when goods are exported.
30
17 Meaning of
installation
31
An
installation
is a structure that:
32
(a) is able:
33
(i) to float or to be floated; and
34
(ii) to move, or to be moved, as an entity from one place to
35
another; and
36
(b) is, or is to be, used wholly or principally in:
37
Chapter 1
Preliminary
Part 2
Interpretation
Division 1
Definitions
Section 18
28
Export Control Bill 2019
No. , 2019
(i) exploring or exploiting natural resources (such as fish or
1
minerals) with equipment on, or forming part of, the
2
structure; or
3
(ii) operations or activities associated with, or incidental to,
4
activities of the kind referred to in subparagraph (i) of
5
this paragraph; and
6
(c) either:
7
(i) is attached to, or resting on, the seabed; or
8
(ii) is attached semipermanently or permanently to a
9
structure that is attached to, or resting on, the seabed.
10
Note:
An installation is a vessel for the purposes of this Act (see
11
paragraph (b) of the definition of
vessel
in section 12).
12
18 Meaning of
integrity
13
The
integrity
of goods is ensured if the identity or composition of
14
the goods, in relation to any condition, restriction or other
15
description that applies in relation to the goods:
16
(a) is ascertainable; and
17
(b) is maintained without loss, addition or substitution; and
18
(c) is not confused with that of any other goods.
19
19 Meaning of
occupier
20
(1) The
occupier
of a registered establishment is the person in whose
21
name the establishment is registered.
22
(2) An
occupier
of an establishment (other than a registered
23
establishment) where export operations in relation to goods are,
24
were or will be carried out, is:
25
(a) the person that operates, operated or will operate the business
26
of carrying out export operations in relation to goods at the
27
establishment; or
28
(b) a person that manages or controls, managed or controlled or
29
will manage or control export operations carried out in
30
relation to goods at the establishment.
31
Preliminary
Chapter 1
Interpretation
Part 2
Other interpretation provisions
Division 2
Section 20
No. , 2019
Export Control Bill 2019
29
Division 2--Other interpretation provisions
1
20 When goods are exported
2
(1) For the purposes of this Act, goods are exported when the
3
conveyance transporting the goods from Australian territory
4
commences its journey to a place outside Australian territory
5
(whether or not that place is the intended final overseas destination
6
for the goods).
7
Note:
If goods are transported between landing places or ports in Australian
8
territory, the goods are exported when the conveyance transporting the
9
goods commences its journey from the last landing place or port in
10
Australian territory before leaving Australian territory.
11
(2) To avoid doubt, subsection (1) applies in relation to goods if:
12
(a) the goods:
13
(i) were taken from waters (other than internal waters) in
14
Australian territory; or
15
(ii) were harvested on the continental shelf adjacent to
16
Australia; or
17
(iii) were harvested in an area on the continental shelf
18
adjacent to an external Territory to which the Act
19
extends under subparagraph 8(2)(b)(ii); and
20
(b) after being taken or harvested, the goods:
21
(i) were loaded onto a conveyance in Australian territory
22
for transportation to a place outside Australian territory;
23
or
24
(ii) were taken to a place outside Australian territory; and
25
(c) the goods were not unloaded at any time at a place on land in
26
Australian territory.
27
21 Persons who manage or control export operations
28
For the purposes of this Act, a person is taken to be a person who
29
manages or controls, or would manage or control, export
30
operations if:
31
Chapter 1
Preliminary
Part 2
Interpretation
Division 2
Other interpretation provisions
Section 21
30
Export Control Bill 2019
No. , 2019
(a) the person has, or would have, authority to direct the export
1
operations, or an important or substantial part of the export
2
operations; or
3
(b) the person has, or would have, authority to direct another
4
person who has, or would have, authority of the kind referred
5
to in paragraph (a) in the exercise of that authority or
6
proposed authority.
7
Exporting goods
Chapter 2
Goods
Part 1
Introduction
Division 1
Section 22
No. , 2019
Export Control Bill 2019
31
Chapter 2--Exporting goods
1
Part 1--Goods
2
Division 1--Introduction
3
22 Simplified outline of this Part
4
Certain goods are prohibited absolutely from being exported from
5
Australian territory. These goods are called permanently prohibited
6
goods.
7
The Minister may, by legislative instrument (a temporary
8
prohibition determination), determine:
9
(a)
that the export of a specified kind of goods (including
10
prescribed goods) from Australian territory, or from a
11
part of Australian territory, is prohibited absolutely for a
12
specified period of up to 6 months; or
13
(b)
that the export of a specified kind of goods (including
14
prescribed goods) from Australian territory, or from a
15
part of Australian territory, to a specified place is
16
prohibited for a specified period of up to 6 months.
17
The Minister may make a temporary prohibition determination
18
only if the Minister is satisfied that the determination is necessary:
19
(a)
to protect human, animal or plant life or health; or
20
(b)
to secure compliance with an Australian law (other than
21
this Act).
22
A temporary prohibition determination may be varied to extend the
23
temporary prohibition period for further periods of up to 6 months.
24
The rules may prescribe kinds of goods (
prescribed goods
) for the
25
purposes of this Act. In deciding whether to prescribe goods that
26
are not animals, plants or food, the Secretary may have regard to
27
relevant matters, including importing country requirements,
28
Chapter 2
Exporting goods
Part 1
Goods
Division 1
Introduction
Section 22
32
Export Control Bill 2019
No. , 2019
sanitary matters, Australian laws and standards, Australia's
1
international rights and obligations and international standards.
2
The rules may:
3
(a)
prohibit the export of prescribed goods from Australian
4
territory, or from a part of Australian territory, unless
5
conditions prescribed by the rules are complied with; or
6
(b)
prohibit the export of prescribed goods from Australian
7
territory, or from a part of Australian territory, to a
8
specified place unless conditions prescribed by the rules
9
are complied with.
10
A person may commit an offence or be liable to a civil penalty if:
11
(a)
permanently prohibited goods, or goods in relation to
12
which a temporary prohibition determination applies, are
13
exported; or
14
(b)
goods are exported, and intended to be imported into a
15
particular place, and the export of the goods to that place
16
is prohibited by a temporary prohibition determination;
17
or
18
(c)
goods are exported in contravention of prescribed export
19
conditions; or
20
(d)
the person makes false or misleading representations
21
about goods that are entered for export.
22
Exporting goods
Chapter 2
Goods
Part 1
Prohibited goods
Division 2
Section 23
No. , 2019
Export Control Bill 2019
33
Division 2--Prohibited goods
1
Subdivision A--Permanently prohibited goods
2
23 Goods that are prohibited from export absolutely
3
The export from Australian territory of split vetch (being split seed
4
of
Vicia sativa
) is prohibited absolutely.
5
Note 1:
For
Australian territory
, see section 14.
6
Note 2:
Division 4 sets out offences and civil penalty provisions for exporting
7
permanently prohibited goods.
8
Subdivision B--Temporarily prohibited goods
9
24 Minister may temporarily prohibit export of goods from
10
Australian territory, or from a part of Australian
11
territory, for a period
12
(1) The Minister may, by legislative instrument, determine:
13
(a) that the export of a specified kind of goods (including
14
prescribed goods) from Australian territory, or from a part of
15
Australian territory, is prohibited absolutely for a specified
16
period of up to 6 months; or
17
(b) that the export of a specified kind of goods (including
18
prescribed goods) from Australian territory, or from a part of
19
Australian territory, to a specified place is prohibited for a
20
specified period of up to 6 months.
21
Note 1:
A determination that is in force under paragraph (1)(a) or (b) is called
22
a temporary prohibition determination.
23
Note 2:
The temporary prohibition period may be extended under section 25.
24
Note 3:
For
Australian territory
, see section 14.
25
(2) The Minister may make a determination under paragraph (1)(a) or
26
(b) only if the Minister is satisfied that the determination is
27
necessary:
28
(a) to protect human, animal or plant life or health; or
29
Chapter 2
Exporting goods
Part 1
Goods
Division 2
Prohibited goods
Section 25
34
Export Control Bill 2019
No. , 2019
(b) to secure compliance with an Australian law (other than this
1
Act).
2
(3) A determination under paragraph (1)(a) or (b) must set out the
3
reasons for making the determination.
4
Note:
Division 4 sets out offences and civil penalty provisions for exporting
5
goods in relation to which a temporary prohibition determination
6
applies.
7
25 Variation of temporary prohibition determination
8
(1) The Minister may vary a temporary prohibition determination to
9
extend the period specified in the determination for a further period
10
of up to 6 months.
11
(2) The Minister may vary a temporary prohibition determination
12
under subsection (1) only if the Minister is satisfied that the
13
variation is necessary:
14
(a) to protect human, animal or plant life or health; or
15
(b) to secure compliance with an Australian law (other than this
16
Act).
17
(3) The Minister may vary a temporary prohibition determination
18
under subsection (1) more than once.
19
(4) A determination varying a temporary prohibition determination
20
must set out the reasons for making the variation.
21
(5) This section does not otherwise limit the application of
22
subsection 33(3) of the
Acts Interpretation Act 1901
in relation to a
23
temporary prohibition determination.
24
26 Effect of temporary prohibition determination on government
25
certificate or export permit
26
Effect on government certificate
27
(1) If:
28
(a) a government certificate has been, or is, issued in relation to a
29
kind of goods that are to be, or that have been, exported; and
30
Exporting goods
Chapter 2
Goods
Part 1
Prohibited goods
Division 2
Section 27
No. , 2019
Export Control Bill 2019
35
(b) a temporary prohibition determination applies in relation to
1
goods of that kind;
2
then the government certificate is taken to have been revoked on
3
the date the temporary prohibition determination takes effect or
4
immediately after the certificate is issued (whichever is later).
5
Effect on export permit
6
(2) If:
7
(a) an export permit has been, or is, issued for a kind of
8
prescribed goods that are to be exported; and
9
(b) a temporary prohibition determination applies in relation to
10
goods of that kind;
11
then the export permit is taken to have been revoked on the date
12
the temporary prohibition determination takes effect or
13
immediately after the permit is issued (whichever is later).
14
27 Temporary prohibition determination prevails over inconsistent
15
rules
16
If a temporary prohibition determination is inconsistent with the
17
rules:
18
(a) the determination prevails; and
19
(b) the rules have no effect to the extent that they are inconsistent
20
with the determination.
21
Chapter 2
Exporting goods
Part 1
Goods
Division 3
Prescribed goods and conditions of export
Section 28
36
Export Control Bill 2019
No. , 2019
Division 3--Prescribed goods and conditions of export
1
28 Rules may prescribe goods for the purposes of this Act
2
(1) The rules may prescribe kinds of goods (
prescribed goods
) for the
3
purposes of this Act.
4
(2) Rules made for the purposes of subsection (1) may prescribe a kind
5
of goods by reference to particular circumstances, including, for
6
example:
7
(a) a place to which the goods are, or are intended to be,
8
exported; and
9
(b) the intended use of the goods.
10
(3) In deciding whether to prescribe a kind of goods referred to in
11
paragraph (d) of the definition of
goods
in section 12, the Secretary
12
may have regard to the following matters:
13
(a) any importing country requirements relating to goods of that
14
kind;
15
(b) sanitary matters (being matters relating to food safety, animal
16
health or human health) and phytosanitary matters (being
17
matters relating to plant health) relating to goods of that kind;
18
(c) any Australian laws and standards relating to goods of that
19
kind;
20
(d) Australia's rights and obligations relating to goods of that
21
kind under any international agreements to which Australia is
22
a party;
23
(e) any international standards relating to goods of that kind;
24
(f) any other matter the Secretary considers relevant.
25
(4) The rules may provide that a kind of goods is taken not to be
26
prescribed goods for the purposes of this Act in the circumstances
27
prescribed by the rules.
28
29 Rules may prohibit export of prescribed goods subject to
29
conditions
30
(1) The rules may:
31
Exporting goods
Chapter 2
Goods
Part 1
Prescribed goods and conditions of export
Division 3
Section 29
No. , 2019
Export Control Bill 2019
37
(a) prohibit the export of prescribed goods from Australian
1
territory, or from a part of Australian territory, unless
2
conditions prescribed by the rules are complied with; or
3
(b) prohibit the export of prescribed goods from Australian
4
territory, or from a part of Australian territory, to a specified
5
place unless conditions prescribed by the rules are complied
6
with.
7
Note 1:
The rules are made by the Secretary under section 432. They are a
8
disallowable legislative instrument and are subject to sunsetting under
9
the
Legislation Act 2003
.
10
Note 2:
The Minister may, by legislative instrument, give directions to the
11
Secretary in relation to the performance of the Secretary's functions or
12
the exercise of the Secretary's powers in making rules under
13
section 432 (see subsection 289(1)).
14
Note 3:
For
Australian territory
, see section 14.
15
Note 4:
Division 4 sets out offences and civil penalty provisions for exporting
16
prescribed goods in contravention of prescribed export conditions.
17
(2) Without limiting subsection (1), the rules may prescribe conditions
18
in relation to the export of prescribed goods, or the export of
19
prescribed goods to a specified place, that:
20
(a) require export operations to be carried out in relation to the
21
goods:
22
(i) at an accredited property; or
23
(ii) at a registered establishment; or
24
(iii) at another kind of premises prescribed by the rules; or
25
(iv) in accordance with an approved arrangement; or
26
(v) in accordance with an export licence; or
27
(vi) in any other way prescribed by the rules; or
28
(b) require the exporter to hold one or more of the following:
29
(i) an approved arrangement covering the goods;
30
(ii) an export licence covering the goods;
31
(iii) a government certificate in relation to the goods;
32
(iv) an export permit for the goods;
33
(v) another kind of permission, consent or approval, granted
34
as prescribed by the rules, to export the goods; or
35
Chapter 2
Exporting goods
Part 1
Goods
Division 3
Prescribed goods and conditions of export
Section 29
38
Export Control Bill 2019
No. , 2019
(c) relate to export operations to be carried out in relation to the
1
goods, including in relation to the following matters:
2
(i) premises, equipment and facilities to be used to produce
3
or prepare the goods;
4
(ii) hygiene;
5
(iii) loading and transport of the goods;
6
(iv) identification, tracing, recall and transfer of the goods;
7
(v) ensuring the integrity of the goods;
8
(vi) trade descriptions;
9
(vii) official marks.
10
(3) Also, without limiting subsection (1), the rules may prescribe
11
conditions in relation to the export of prescribed goods, or the
12
export of prescribed goods to a specified place, that are required to
13
be complied with in respect of matters or things not related to the
14
goods themselves.
15
(4) Despite subsection 14(2) of the
Legislation Act 2003
, rules made
16
for the purposes of this section may make provision in relation to a
17
matter by applying, adopting or incorporating any matter contained
18
in an instrument or other writing, as in force or existing from time
19
to time, if the instrument or other writing is published on the
20
Department's website.
21
Note:
The Department's website is http://www.agriculture.gov.au.
22
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 30
No. , 2019
Export Control Bill 2019
39
Division 4--Offences and civil penalty provisions
1
30 Exporting goods that are subject to absolute prohibition on
2
export--basic contravention
3
(1) A person contravenes this subsection if:
4
(a) the person exports goods; and
5
(b) either:
6
(i) the goods are permanently prohibited goods; or
7
(ii) the export of the goods is prohibited absolutely by a
8
temporary prohibition determination.
9
Note:
The physical elements of an offence against subsection (2) are set out
10
in this subsection (see section 370).
11
Fault-based offence
12
(2) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
15
(3) For the purposes of subsection (2), strict liability applies to
16
paragraph (1)(b).
17
Civil penalty provision
18
(4) A person is liable to a civil penalty if the person contravenes
19
subsection (1).
20
Civil penalty:
960 penalty units.
21
31 Exporting goods that are subject to absolute prohibition on
22
export--intention to obtain commercial advantage
23
(1) A person contravenes this subsection if:
24
(a) the person exports goods; and
25
(b) either:
26
(i) the goods are permanently prohibited goods; or
27
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 31
40
Export Control Bill 2019
No. , 2019
(ii) the export of the goods is prohibited absolutely by a
1
temporary prohibition determination; and
2
(c) the person intends to obtain a commercial advantage over the
3
person's competitors, or potential competitors, as a result of
4
exporting the goods.
5
Note:
The physical elements of an offence against subsection (2) are set out
6
in this subsection (see section 370).
7
Fault-based offence
8
(2) A person commits an offence if the person contravenes
9
subsection (1).
10
Penalty:
11
(a) if the person is an individual--imprisonment for 10 years or
12
2,000 penalty units, or both; or
13
(b) if the person is a body corporate--the amount under
14
section 50A.
15
(3) For the purposes of subsection (2), strict liability applies to
16
paragraph (1)(b).
17
Alternative verdict
18
(4) In a trial for an offence against subsection (2), the trier of fact may
19
find the defendant not guilty of that offence, but guilty of an
20
offence against subsection 30(2), if:
21
(a) the trier of fact is not satisfied that the defendant is guilty of
22
the offence against subsection (2) of this section; and
23
(b) the trier of fact is satisfied that the defendant is guilty of the
24
offence against subsection 30(2); and
25
(c) the defendant has been accorded procedural fairness in
26
relation to that finding of guilt.
27
Civil penalty provision
28
(5) A person is liable to a civil penalty if the person contravenes
29
subsection (1).
30
Civil penalty:
31
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 32
No. , 2019
Export Control Bill 2019
41
(a) if the person is an individual--4,000 penalty units; or
1
(b) if the person is a body corporate--the amount under
2
section 50A.
3
32 Exporting goods that are subject to absolute prohibition on
4
export--economic consequences for Australia
5
(1) A person contravenes this subsection if:
6
(a) the person exports goods; and
7
(b) either:
8
(i) the goods are permanently prohibited goods; or
9
(ii) the export of the goods is prohibited absolutely by a
10
temporary prohibition determination; and
11
(c) the export of the goods causes, or has the potential to cause,
12
economic consequences for Australia.
13
Note:
The physical elements of an offence against subsection (2) are set out
14
in this subsection (see section 370).
15
Fault-based offence
16
(2) A person commits an offence if the person contravenes
17
subsection (1).
18
Penalty:
19
(a) if the person is an individual--imprisonment for 10 years or
20
2,000 penalty units, or both; or
21
(b) if the person is a body corporate--the amount under
22
section 50A.
23
(3) For the purposes of subsection (2), strict liability applies to
24
paragraph (1)(b).
25
Alternative verdict
26
(4) In a trial for an offence against subsection (2), the trier of fact may
27
find the defendant not guilty of that offence, but guilty of an
28
offence against subsection 30(2), if:
29
(a) the trier of fact is not satisfied that the defendant is guilty of
30
the offence against subsection (2) of this section; and
31
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 33
42
Export Control Bill 2019
No. , 2019
(b) the trier of fact is satisfied that the defendant is guilty of the
1
offence against subsection 30(2); and
2
(c) the defendant has been accorded procedural fairness in
3
relation to that finding of guilt.
4
Civil penalty provision
5
(5) A person is liable to a civil penalty if the person contravenes
6
subsection (1).
7
Civil penalty:
8
(a) if the person is an individual--4,000 penalty units; or
9
(b) if the person is a body corporate--the amount under
10
section 50A.
11
33 Conveying or possessing goods that are subject to absolute
12
prohibition on export and are intended to be exported etc.
13
Person intends to export goods
14
(1) A person contravenes this subsection if:
15
(a) the person conveys, or has in the person's possession, goods;
16
and
17
(b) the person intends to export the goods; and
18
(c) either:
19
(i) the goods are permanently prohibited goods; or
20
(ii) the export of the goods is prohibited absolutely by a
21
temporary prohibition determination.
22
Note:
The physical elements of an offence against subsection (2) are set out
23
in this subsection (see section 370).
24
Fault-based offence
25
(2) A person commits an offence if the person contravenes
26
subsection (1).
27
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
28
(3) For the purposes of subsection (2), strict liability applies to
29
paragraph (1)(c).
30
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 33
No. , 2019
Export Control Bill 2019
43
Civil penalty provision
1
(4) A person is liable to a civil penalty if the person contravenes
2
subsection (1).
3
Civil penalty:
960 penalty units.
4
Person knows that goods are intended to be exported
5
(5) A person contravenes this subsection if:
6
(a) the person conveys, or has in the person's possession, goods;
7
and
8
(b) the person knows that the goods are intended to be exported;
9
and
10
(c) either:
11
(i) the goods are permanently prohibited goods; or
12
(ii) the export of the goods is prohibited absolutely by a
13
temporary prohibition determination.
14
Note:
The physical elements of an offence against subsection (6) are set out
15
in this subsection (see section 370).
16
Fault-based offence
17
(6) A person commits an offence if the person contravenes
18
subsection (5).
19
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
20
(7) For the purposes of subsection (6), strict liability applies to
21
paragraph (5)(c).
22
Civil penalty provision
23
(8) A person is liable to a civil penalty if the person contravenes
24
subsection (5).
25
Civil penalty:
960 penalty units.
26
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 34
44
Export Control Bill 2019
No. , 2019
34 Exporting goods to a temporarily prohibited place--basic
1
contravention
2
(1) A person contravenes this subsection if:
3
(a) the person exports goods; and
4
(b) the person intends the goods to be imported into a particular
5
place (whether that intention exists at the time the goods are
6
exported or is formed after that time); and
7
(c) the export of the goods to that place is prohibited by a
8
temporary prohibition determination.
9
Note:
The physical elements of an offence against subsection (2) are set out
10
in this subsection (see section 370).
11
Fault-based offence
12
(2) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
15
(3) For the purposes of subsection (2), strict liability applies to
16
paragraph (1)(c).
17
Civil penalty provision
18
(4) A person is liable to a civil penalty if the person contravenes
19
subsection (1).
20
Civil penalty:
960 penalty units.
21
35 Exporting goods to a temporarily prohibited place--intention to
22
obtain commercial advantage
23
(1) A person contravenes this subsection if:
24
(a) the person exports goods; and
25
(b) the person intends the goods to be imported into a particular
26
place (whether that intention exists at the time the goods are
27
exported or is formed after that time); and
28
(c) the export of the goods to that place is prohibited by a
29
temporary prohibition determination; and
30
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 35
No. , 2019
Export Control Bill 2019
45
(d) the person intends to obtain a commercial advantage over the
1
person's competitors, or potential competitors, as a result of
2
exporting the goods to that place.
3
Note:
The physical elements of an offence against subsection (2) are set out
4
in this subsection (see section 370).
5
Fault-based offence
6
(2) A person commits an offence if the person contravenes
7
subsection (1).
8
Penalty:
9
(a) if the person is an individual--imprisonment for 10 years or
10
2,000 penalty units, or both; or
11
(b) if the person is a body corporate--the amount under
12
section 50A.
13
(3) For the purposes of subsection (2), strict liability applies to
14
paragraph (1)(c).
15
Alternative verdict
16
(4) In a trial for an offence against subsection (2), the trier of fact may
17
find the defendant not guilty of that offence, but guilty of an
18
offence against subsection 34(2), if:
19
(a) the trier of fact is not satisfied that the defendant is guilty of
20
the offence against subsection (2) of this section; and
21
(b) the trier of fact is satisfied that the defendant is guilty of the
22
offence against subsection 34(2); and
23
(c) the defendant has been accorded procedural fairness in
24
relation to that finding of guilt.
25
Civil penalty provision
26
(5) A person is liable to a civil penalty if the person contravenes
27
subsection (1).
28
Civil penalty:
29
(a) if the person is an individual--4,000 penalty units; or
30
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 36
46
Export Control Bill 2019
No. , 2019
(b) if the person is a body corporate--the amount under
1
section 50A.
2
36 Exporting goods to a temporarily prohibited place--economic
3
consequences for Australia
4
(1) A person contravenes this subsection if:
5
(a) the person exports goods; and
6
(b) the person intends the goods to be imported into a particular
7
place (whether that intention exists at the time the goods are
8
exported or is formed after that time); and
9
(c) the export of the goods to that place is prohibited by a
10
temporary prohibition determination; and
11
(d) the export of the goods to that place causes, or has the
12
potential to cause, economic consequences for Australia.
13
Note:
The physical elements of an offence against subsection (2) are set out
14
in this subsection (see section 370).
15
Fault-based offence
16
(2) A person commits an offence if the person contravenes
17
subsection (1).
18
Penalty:
19
(a) if the person is an individual--imprisonment for 10 years or
20
2,000 penalty units, or both; or
21
(b) if the person is a body corporate--the amount under
22
section 50A.
23
(3) For the purposes of subsection (2), strict liability applies to
24
paragraph (1)(c).
25
Alternative verdict
26
(4) In a trial for an offence against subsection (2), the trier of fact may
27
find the defendant not guilty of that offence, but guilty of an
28
offence against subsection 34(2), if:
29
(a) the trier of fact is not satisfied that the defendant is guilty of
30
the offence against subsection (2) of this section; and
31
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 37
No. , 2019
Export Control Bill 2019
47
(b) the trier of fact is satisfied that the defendant is guilty of the
1
offence against subsection 34(2); and
2
(c) the defendant has been accorded procedural fairness in
3
relation to that finding of guilt.
4
Civil penalty provision
5
(5) A person is liable to a civil penalty if the person contravenes
6
subsection (1).
7
Civil penalty:
8
(a) if the person is an individual--4,000 penalty units; or
9
(b) if the person is a body corporate--the amount under
10
section 50A.
11
37 Conveying or possessing goods that are intended to be exported
12
to a temporarily prohibited place etc.
13
Person intends to export goods to temporarily prohibited place
14
(1) A person contravenes this subsection if:
15
(a) the person conveys, or has in the person's possession, goods;
16
and
17
(b) the person intends to export the goods to a particular place;
18
and
19
(c) the export of the goods to that place is prohibited by a
20
temporary prohibition determination.
21
Note:
The physical elements of an offence against subsection (2) are set out
22
in this subsection (see section 370).
23
Fault-based offence
24
(2) A person commits an offence if the person contravenes
25
subsection (1).
26
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
27
(3) For the purposes of subsection (2), strict liability applies to
28
paragraph (1)(c).
29
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 38
48
Export Control Bill 2019
No. , 2019
Civil penalty provision
1
(4) A person is liable to a civil penalty if the person contravenes
2
subsection (1).
3
Civil penalty:
960 penalty units.
4
Person knows that goods are intended to be exported to
5
temporarily prohibited place
6
(5) A person contravenes this subsection if:
7
(a) the person conveys, or has in the person's possession, goods;
8
and
9
(b) the person knows that the goods are intended to be exported
10
to a particular place; and
11
(c) the export of the goods to that place is prohibited by a
12
temporary prohibition determination.
13
Note:
The physical elements of an offence against subsection (6) are set out
14
in this subsection (see section 370).
15
Fault-based offence
16
(6) A person commits an offence if the person contravenes
17
subsection (5).
18
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
19
(7) For the purposes of subsection (6), strict liability applies to
20
paragraph (5)(c).
21
Civil penalty provision
22
(8) A person is liable to a civil penalty if the person contravenes
23
subsection (5).
24
Civil penalty:
960 penalty units.
25
38 Exporting prescribed goods--non-compliance with prescribed
26
export conditions--basic contravention
27
(1) A person contravenes this subsection if:
28
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 39
No. , 2019
Export Control Bill 2019
49
(a) the person exports goods; and
1
(b) the goods are prescribed goods; and
2
(c) the export of the goods is prohibited unless prescribed export
3
conditions are complied with; and
4
(d) prescribed export conditions were not complied with.
5
Note:
The physical elements of an offence against subsection (2) are set out
6
in this subsection (see section 370).
7
Fault-based offence
8
(2) A person commits an offence if the person contravenes
9
subsection (1).
10
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
11
(3) For the purposes of subsection (2), strict liability applies to
12
paragraphs (1)(b), (c) and (d).
13
Civil penalty provision
14
(4) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
960 penalty units.
17
39 Exporting prescribed goods--non-compliance with prescribed
18
export conditions--intention to obtain commercial
19
advantage
20
(1) A person contravenes this subsection if:
21
(a) the person exports goods; and
22
(b) the goods are prescribed goods; and
23
(c) the export of the goods is prohibited unless prescribed export
24
conditions are complied with; and
25
(d) prescribed export conditions were not complied with; and
26
(e) the person intends to obtain a commercial advantage over the
27
person's competitors, or potential competitors, as a result of
28
exporting the goods.
29
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 39
50
Export Control Bill 2019
No. , 2019
Note:
The physical elements of an offence against subsection (2) are set out
1
in this subsection (see section 370).
2
Fault-based offence
3
(2) A person commits an offence if the person contravenes
4
subsection (1).
5
Penalty:
6
(a) if the person is an individual--imprisonment for 10 years or
7
2,000 penalty units, or both; or
8
(b) if the person is a body corporate--the amount under
9
section 50A.
10
(3) For the purposes of subsection (2), strict liability applies to
11
paragraphs (1)(b), (c) and (d).
12
Alternative verdict
13
(4) In a trial for an offence against subsection (2), the trier of fact may
14
find the defendant not guilty of that offence, but guilty of an
15
offence against subsection 38(2), if:
16
(a) the trier of fact is not satisfied that the defendant is guilty of
17
the offence against subsection (2) of this section; and
18
(b) the trier of fact is satisfied that the defendant is guilty of the
19
offence against subsection 38(2); and
20
(c) the defendant has been accorded procedural fairness in
21
relation to that finding of guilt.
22
Civil penalty provision
23
(5) A person is liable to a civil penalty if the person contravenes
24
subsection (1).
25
Civil penalty:
26
(a) if the person is an individual--4,000 penalty units; or
27
(b) if the person is a body corporate--the amount under
28
section 50A.
29
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 40
No. , 2019
Export Control Bill 2019
51
40 Exporting prescribed goods--non-compliance with prescribed
1
export conditions--economic consequences for Australia
2
(1) A person contravenes this subsection if:
3
(a) the person exports goods; and
4
(b) the goods are prescribed goods; and
5
(c) the export of the goods is prohibited unless prescribed export
6
conditions are complied with; and
7
(d) prescribed export conditions were not complied with; and
8
(e) the export of the goods causes, or has the potential to cause,
9
economic consequences for Australia.
10
Note:
The physical elements of an offence against subsection (2) are set out
11
in this subsection (see section 370).
12
Fault-based offence
13
(2) A person commits an offence if the person contravenes
14
subsection (1).
15
Penalty:
16
(a) if the person is an individual--imprisonment for 10 years or
17
2,000 penalty units, or both; or
18
(b) if the person is a body corporate--the amount under
19
section 50A.
20
(3) For the purposes of subsection (2), strict liability applies to
21
paragraphs (1)(b), (c) and (d).
22
Alternative verdict
23
(4) In a trial for an offence against subsection (2), the trier of fact may
24
find the defendant not guilty of that offence, but guilty of an
25
offence against subsection 38(2), if:
26
(a) the trier of fact is not satisfied that the defendant is guilty of
27
the offence against subsection (2) of this section; and
28
(b) the trier of fact is satisfied that the defendant is guilty of the
29
offence against subsection 38(2); and
30
(c) the defendant has been accorded procedural fairness in
31
relation to that finding of guilt.
32
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 41
52
Export Control Bill 2019
No. , 2019
Civil penalty provision
1
(5) A person is liable to a civil penalty if the person contravenes
2
subsection (1).
3
Civil penalty:
4
(a) if the person is an individual--4,000 penalty units; or
5
(b) if the person is a body corporate--the amount under
6
section 50A.
7
41 Conveying or possessing prescribed goods that are intended to be
8
exported in contravention of conditions etc.
9
Person intends to export goods in contravention of conditions
10
(1) A person contravenes this subsection if:
11
(a) the person conveys, or has in the person's possession, goods;
12
and
13
(b) the goods are prescribed goods; and
14
(c) the export of the goods is prohibited unless prescribed export
15
conditions are complied with; and
16
(d) the person intends to export the goods; and
17
(e) the export of the goods would contravene the prescribed
18
export conditions.
19
Note:
The physical elements of an offence against subsection (2) are set out
20
in this subsection (see section 370).
21
Fault-based offence
22
(2) A person commits an offence if the person contravenes
23
subsection (1).
24
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
25
Civil penalty provision
26
(3) A person is liable to a civil penalty if the person contravenes
27
subsection (1).
28
Civil penalty:
960 penalty units.
29
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 42
No. , 2019
Export Control Bill 2019
53
Goods are intended to be exported in contravention of conditions
1
(4) A person contravenes this subsection if:
2
(a) the person conveys, or has in the person's possession, goods;
3
and
4
(b) the goods are prescribed goods; and
5
(c) the export of the goods is prohibited unless prescribed export
6
conditions are complied with; and
7
(d) the person knows that the goods are intended to be exported;
8
and
9
(e) the export of the goods would contravene the prescribed
10
export conditions.
11
Note:
The physical elements of an offence against subsection (5) are set out
12
in this subsection (see section 370).
13
Fault-based offence
14
(5) A person commits an offence if the person contravenes
15
subsection (4).
16
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
17
Civil penalty provision
18
(6) A person is liable to a civil penalty if the person contravenes
19
subsection (4).
20
Civil penalty:
960 penalty units.
21
42 Exporting prescribed goods to a particular place--
22
non-compliance with prescribed export conditions--basic
23
contravention
24
(1) A person contravenes this subsection if:
25
(a) the person exports goods; and
26
(b) the goods are prescribed goods; and
27
(c) the person intends the goods to be imported into a particular
28
place (whether that intention exists at the time the goods are
29
exported or is formed after that time); and
30
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 43
54
Export Control Bill 2019
No. , 2019
(d) the export of the goods to that place is prohibited unless
1
prescribed export conditions are complied with; and
2
(e) prescribed export conditions were not complied with.
3
Note:
The physical elements of an offence against subsection (2) are set out
4
in this subsection (see section 370).
5
Fault-based offence
6
(2) A person commits an offence if the person contravenes
7
subsection (1).
8
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
9
(3) For the purposes of subsection (2), strict liability applies to
10
paragraphs (1)(b), (d) and (e).
11
Civil penalty provision
12
(4) A person is liable to a civil penalty if the person contravenes
13
subsection (1).
14
Civil penalty:
960 penalty units.
15
43 Exporting prescribed goods to a particular place--
16
non-compliance with prescribed export conditions--
17
intention to obtain commercial advantage
18
(1) A person contravenes this subsection if:
19
(a) the person exports goods; and
20
(b) the goods are prescribed goods; and
21
(c) the person intends the goods to be imported into a particular
22
place (whether that intention exists at the time the goods are
23
exported or is formed after that time); and
24
(d) the export of the goods to that place is prohibited unless
25
prescribed export conditions are complied with; and
26
(e) prescribed export conditions were not complied with; and
27
(f) the person intends to obtain a commercial advantage over the
28
person's competitors, or potential competitors, as a result of
29
exporting the goods to that place.
30
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 43
No. , 2019
Export Control Bill 2019
55
Note:
The physical elements of an offence against subsection (2) are set out
1
in this subsection (see section 370).
2
Fault-based offence
3
(2) A person commits an offence if the person contravenes
4
subsection (1).
5
Penalty:
6
(a) if the person is an individual--imprisonment for 10 years or
7
2,000 penalty units, or both; or
8
(b) if the person is a body corporate--the amount under
9
section 50A.
10
(3) For the purposes of subsection (2), strict liability applies to
11
paragraphs (1)(b), (d) and (e).
12
Alternative verdict
13
(4) In a trial for an offence against subsection (2), the trier of fact may
14
find the defendant not guilty of that offence, but guilty of an
15
offence against subsection 42(2), if:
16
(a) the trier of fact is not satisfied that the defendant is guilty of
17
the offence against subsection (2) of this section; and
18
(b) the trier of fact is satisfied that the defendant is guilty of the
19
offence against subsection 42(2); and
20
(c) the defendant has been accorded procedural fairness in
21
relation to that finding of guilt.
22
Civil penalty provision
23
(5) A person is liable to a civil penalty if the person contravenes
24
subsection (1).
25
Civil penalty:
26
(a) if the person is an individual--4,000 penalty units; or
27
(b) if the person is a body corporate--the amount under
28
section 50A.
29
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 44
56
Export Control Bill 2019
No. , 2019
44 Exporting prescribed goods to a particular place--
1
non-compliance with prescribed export conditions--
2
economic consequences for Australia
3
(1) A person contravenes this subsection if:
4
(a) the person exports goods; and
5
(b) the goods are prescribed goods; and
6
(c) the person intends the goods to be imported into a particular
7
place (whether that intention exists at the time the goods are
8
exported or is formed after that time); and
9
(d) the export of the goods to that place is prohibited unless
10
prescribed export conditions are complied with; and
11
(e) prescribed export conditions were not complied with; and
12
(f) the export of the goods to that place causes, or has the
13
potential to cause, economic consequences for Australia.
14
Note:
The physical elements of an offence against subsection (2) are set out
15
in this subsection (see section 370).
16
Fault-based offence
17
(2) A person commits an offence if the person contravenes
18
subsection (1).
19
Penalty:
20
(a) if the person is an individual--imprisonment for 10 years or
21
2,000 penalty units, or both; or
22
(b) if the person is a body corporate--the amount under
23
section 50A.
24
(3) For the purposes of subsection (2), strict liability applies to
25
paragraphs (1)(b), (d) and (e).
26
Alternative verdict
27
(4) In a trial for an offence against subsection (2), the trier of fact may
28
find the defendant not guilty of that offence, but guilty of an
29
offence against subsection 42(2), if:
30
(a) the trier of fact is not satisfied that the defendant is guilty of
31
the offence against subsection (2) of this section; and
32
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 45
No. , 2019
Export Control Bill 2019
57
(b) the trier of fact is satisfied that the defendant is guilty of the
1
offence against subsection 42(2); and
2
(c) the defendant has been accorded procedural fairness in
3
relation to that finding of guilt.
4
Civil penalty provision
5
(5) A person is liable to a civil penalty if the person contravenes
6
subsection (1).
7
Civil penalty:
8
(a) if the person is an individual--4,000 penalty units; or
9
(b) if the person is a body corporate--the amount under
10
section 50A.
11
45 Conveying or possessing prescribed goods that are intended to be
12
exported to a particular place in contravention of
13
conditions etc.
14
Person intends to export goods to prohibited place in
15
contravention of conditions
16
(1) A person contravenes this subsection if:
17
(a) the person conveys, or has in the person's possession, goods;
18
and
19
(b) the goods are prescribed goods; and
20
(c) the export of the goods to a particular place is prohibited
21
unless prescribed export conditions are complied with; and
22
(d) the person intends to export the goods to that place; and
23
(e) the export of the goods to that place would contravene the
24
prescribed export conditions.
25
Note:
The physical elements of an offence against subsection (2) are set out
26
in this subsection (see section 370).
27
Fault-based offence
28
(2) A person commits an offence if the person contravenes
29
subsection (1).
30
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 45
58
Export Control Bill 2019
No. , 2019
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
1
Civil penalty provision
2
(3) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
960 penalty units.
5
Goods are intended to be exported to prohibited place in
6
contravention of conditions
7
(4) A person contravenes this subsection if:
8
(a) the person conveys, or has in the person's possession, goods;
9
and
10
(b) the goods are prescribed goods; and
11
(c) the export of the goods to a particular place is prohibited
12
unless prescribed export conditions are complied with; and
13
(d) the person knows that the goods are intended to be exported
14
to that place; and
15
(e) the export of the goods to that place would contravene the
16
prescribed export conditions.
17
Note:
The physical elements of an offence against subsection (5) are set out
18
in this subsection (see section 370).
19
Fault-based offence
20
(5) A person commits an offence if the person contravenes
21
subsection (4).
22
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
23
Civil penalty provision
24
(6) A person is liable to a civil penalty if the person contravenes
25
subsection (4).
26
Civil penalty:
960 penalty units.
27
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 46
No. , 2019
Export Control Bill 2019
59
46 Producing or preparing prescribed goods or other goods at
1
certain premises in contravention of conditions--general
2
(1) A person contravenes this subsection if:
3
(a) the person is:
4
(i) the occupier of a registered establishment; or
5
(ii) the manager of an accredited property; or
6
(iii) the occupier of premises other than a registered
7
establishment or an accredited property; and
8
(b) goods are produced or prepared at the registered
9
establishment, accredited property or other premises; and
10
(c) the goods are prescribed goods; and
11
(d) the goods are exported after being produced or prepared at
12
the registered establishment, accredited property or other
13
premises (with or without further preparation); and
14
(e) the export of the goods is prohibited unless prescribed export
15
conditions are complied with; and
16
(f) one or more of the prescribed export conditions applies in
17
relation to:
18
(i) the person; or
19
(ii) the registered establishment, accredited property or
20
other premises; or
21
(iii) the production or preparation of the goods at the
22
registered establishment, accredited property or other
23
premises; and
24
(g) one or more of those prescribed export conditions is
25
contravened.
26
Note:
The physical elements of an offence against subsection (2) are set out
27
in this subsection (see section 370).
28
Fault-based offence
29
(2) A person commits an offence if the person contravenes
30
subsection (1).
31
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
32
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 47
60
Export Control Bill 2019
No. , 2019
(3) For the purposes of subsection (2), strict liability applies to
1
paragraphs (1)(c), (e), (f) and (g).
2
Strict liability offence
3
(4) A person commits an offence of strict liability if the person
4
contravenes subsection (1).
5
Penalty: 60 penalty units.
6
Civil penalty provision
7
(5) A person is liable to a civil penalty if the person contravenes
8
subsection (1).
9
Civil penalty:
960 penalty units.
10
47 Producing or preparing prescribed goods or other goods at
11
certain premises in contravention of conditions--goods to
12
be exported to a particular place
13
(1) A person contravenes this subsection if:
14
(a) the person is:
15
(i) the occupier of a registered establishment; or
16
(ii) the manager of an accredited property; or
17
(iii) the occupier of premises other than a registered
18
establishment or an accredited property; and
19
(b) goods are produced or prepared at the registered
20
establishment, accredited property or other premises; and
21
(c) the goods are prescribed goods; and
22
(d) the goods are exported to a particular place after being
23
produced or prepared at the registered establishment,
24
accredited property or other premises (with or without further
25
preparation); and
26
(e) the export of the goods to that place is prohibited unless
27
prescribed export conditions are complied with; and
28
(f) one or more of the prescribed export conditions applies in
29
relation to:
30
(i) the person; or
31
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 48
No. , 2019
Export Control Bill 2019
61
(ii) the registered establishment, accredited property or
1
other premises; or
2
(iii) the production or preparation of the goods at the
3
registered establishment, accredited property or other
4
premises; and
5
(g) one or more of those prescribed export conditions is
6
contravened.
7
Note:
The physical elements of an offence against subsection (2) are set out
8
in this subsection (see section 370).
9
Fault-based offence
10
(2) A person commits an offence if the person contravenes
11
subsection (1).
12
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
13
(3) For the purposes of subsection (2), strict liability applies to
14
paragraphs (1)(c), (e), (f) and (g).
15
Strict liability offence
16
(4) A person commits an offence of strict liability if the person
17
contravenes subsection (1).
18
Penalty: 60 penalty units.
19
Civil penalty provision
20
(5) A person is liable to a civil penalty if the person contravenes
21
subsection (1).
22
Civil penalty:
960 penalty units.
23
48 Making false or misleading representation about prescribed
24
goods that are entered for export--general
25
(1) A person contravenes this subsection if:
26
(a) goods are entered for export by the person; and
27
(b) the goods are prescribed goods; and
28
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 49
62
Export Control Bill 2019
No. , 2019
(c) the export of the goods is prohibited unless prescribed export
1
conditions are complied with; and
2
(d) at the time the goods are entered for export:
3
(i) the person represents (either expressly or by necessary
4
implication) that the prescribed export conditions
5
applicable, at or before that time, in relation to the
6
export of goods have been complied with; and
7
(ii) the person does so knowing that the representation is
8
false or misleading.
9
Note:
The physical elements of an offence against subsection (2) are set out
10
in this subsection (see section 370).
11
Fault-based offence
12
(2) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
15
(3) For the purposes of subsection (2), strict liability applies to
16
paragraphs (1)(b) and (c).
17
Civil penalty provision
18
(4) A person is liable to a civil penalty if the person contravenes
19
subsection (1).
20
Civil penalty:
960 penalty units.
21
49 Making false or misleading representation about prescribed
22
goods that are entered for export to a particular place
23
(1) A person contravenes this subsection if:
24
(a) goods are entered for export by the person; and
25
(b) the goods are prescribed goods; and
26
(c) the goods are to be exported to a particular place; and
27
(d) the export of the goods to that place is prohibited unless
28
prescribed export conditions are complied with; and
29
(e) at the time the goods are entered for export:
30
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 50
No. , 2019
Export Control Bill 2019
63
(i) the person represents (either expressly or by necessary
1
implication) that the prescribed export conditions
2
applicable, at or before that time, in relation to the
3
export of goods to that place have been complied with;
4
and
5
(ii) the person does so knowing that the representation is
6
false or misleading.
7
Note:
The physical elements of an offence against subsection (2) are set out
8
in this subsection (see section 370).
9
Fault-based offence
10
(2) A person commits an offence if the person contravenes
11
subsection (1).
12
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
13
(3) For the purposes of subsection (2), strict liability applies to
14
paragraphs (1)(b) and (d).
15
Civil penalty provision
16
(4) A person is liable to a civil penalty if the person contravenes
17
subsection (1).
18
Civil penalty:
960 penalty units.
19
50 Making false or misleading representation about non-prescribed
20
goods that are entered for export
21
(1) A person contravenes this subsection if:
22
(a) goods are entered for export by the person; and
23
(b) the goods are non-prescribed goods; and
24
(c) at the time the goods are entered for export:
25
(i) the person makes a representation (either expressly or
26
by necessary implication) in relation to any matters that
27
are to be stated in a government certificate in relation to
28
the goods (for example that the goods meet an
29
importing country requirement relating to the goods);
30
and
31
Chapter 2
Exporting goods
Part 1
Goods
Division 4
Offences and civil penalty provisions
Section 50A
64
Export Control Bill 2019
No. , 2019
(ii) the person does so knowing that the representation is
1
false or misleading.
2
Note:
The physical elements of an offence against subsection (2) are set out
3
in this subsection (see section 370).
4
Fault-based offence
5
(2) A person commits an offence if the person contravenes
6
subsection (1).
7
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
8
(3) For the purposes of subsection (2), strict liability applies to
9
paragraph (1)(b).
10
Civil penalty provision
11
(4) A person is liable to a civil penalty if the person contravenes
12
subsection (1).
13
Civil penalty:
600 penalty units.
14
50A Penalties for certain contraventions by bodies corporate
15
(1) This section has effect for the purposes of the following provisions:
16
(a) subsections 31(2) and (5);
17
(b) subsections 32(2) and (5);
18
(c) subsections 35(2) and (5);
19
(d) subsections 36(2) and (5);
20
(e) subsections 39(2) and (5);
21
(f) subsections 40(2) and (5);
22
(g) subsections 43(2) and (5);
23
(h) subsections 44(2) and (5);
24
(i) subsections 217(2), (4), (6) and (8).
25
(2) The amount of the penalty for a contravention by the body
26
corporate (the
first body
) of a provision referred to in
27
subsection (1) is an amount not more than the greatest of the
28
following:
29
(a) 20,000 penalty units;
30
Exporting goods
Chapter 2
Goods
Part 1
Offences and civil penalty provisions
Division 4
Section 50A
No. , 2019
Export Control Bill 2019
65
(b) if the first body, and any related body corporate of the first
1
body, has obtained, directly or indirectly, a benefit that is
2
reasonably attributable to the conduct constituting the
3
contravention, and the relevant court can determine the value
4
of that benefit--3 times the value of that benefit;
5
(c) if the relevant court cannot determine the value of a benefit
6
referred to in paragraph (b) or no such benefit has been
7
obtained--10% of the annual turnover of the first body
8
during the period (the
turnover period
) of 12 months ending
9
at the end of the month in which the first body committed, or
10
began committing, the contravention.
11
(3) For the purposes of this section, the
annual turnover
of the first
12
body, during the turnover period, is the sum of the values of all the
13
supplies that the first body, and any related body corporate of the
14
first body, have made, or are likely to make, during that period,
15
other than the following supplies:
16
(a) supplies made from the first body to any related body
17
corporate of the first body;
18
(b) supplies made from any related body corporate of the first
19
body to the first body;
20
(c) supplies that are input taxed;
21
(d) supplies that are not for consideration (and are not taxable
22
supplies under section 72-5 of the
A New Tax System (Goods
23
and Services Tax) Act 1999
);
24
(e) supplies that are not made in connection with an enterprise
25
that the first body carries on.
26
(4) Expressions used in subsection (3) that are also used in the
A New
27
Tax System (Goods and Services Tax) Act 1999
have the same
28
meaning in that subsection as they have in that Act.
29
(5) The question whether 2 bodies corporate are related to each other
30
is to be determined for the purposes of this section in the same way
31
as for the purposes of the
Corporations Act 2001
.
32
Chapter 2
Exporting goods
Part 2
Exemptions
Division 1
Introduction
Section 51
66
Export Control Bill 2019
No. , 2019
Part 2--Exemptions
1
Division 1--Introduction
2
51 Simplified outline of this Part
3
The Secretary may grant an exemption from one or more
4
provisions of this Act in relation to prescribed goods that are to be
5
exported:
6
(a)
as a commercial sample; or
7
(b)
for experimental purposes; or
8
(c)
in exceptional circumstances; or
9
(d)
in special commercial circumstances; or
10
(e)
in other circumstances prescribed by the rules.
11
The Secretary may also grant an exemption from one or more
12
provisions of this Act in relation to prescribed goods that are to be
13
exported to a particular country if the Secretary is satisfied that it is
14
not necessary for those provisions to be complied with for the
15
purpose of ensuring that importing country requirements relating to
16
the goods are met.
17
An exemption may be granted subject to conditions which may be
18
varied. An exemption must not be varied.
19
An exemption may be revoked.
20
52 Application of this Part
21
(1) This Part applies in relation to a kind of prescribed goods (in this
22
Part called
relevant goods
) that are to be exported:
23
(a) as a commercial sample; or
24
(b) for experimental purposes; or
25
(c) in exceptional circumstances; or
26
(d) in special commercial circumstances; or
27
Exporting goods
Chapter 2
Exemptions
Part 2
Introduction
Division 1
Section 52
No. , 2019
Export Control Bill 2019
67
(e) in other circumstances prescribed by the rules.
1
(2) For the purposes of subsection (1), the rules may prescribe the
2
meaning of any of the following terms:
3
(a) commercial sample;
4
(b) experimental purposes;
5
(c) exceptional circumstances;
6
(d) special commercial circumstances.
7
(3) This Part also applies to a kind of prescribed goods (in this Part
8
also called
relevant goods
) that are to be exported to a particular
9
country (the
importing country
) if the Secretary is satisfied that it
10
is not necessary for one or more of the provisions of this Act to be
11
complied with for the purpose of ensuring that importing country
12
requirements relating to the goods are met.
13
Chapter 2
Exporting goods
Part 2
Exemptions
Division 2
Exemptions
Section 53
68
Export Control Bill 2019
No. , 2019
Division 2--Exemptions
1
53 Application for exemption
2
(1) An application for an exemption from one or more provisions of
3
this Act in relation to relevant goods may be made to the Secretary
4
by any of the following:
5
(a) a person who wishes to export relevant goods;
6
(b) the manager of an accredited property where export
7
operations in relation to relevant goods are or will be carried
8
out;
9
(c) the occupier of a registered establishment where export
10
operations in relation to relevant goods are or will be carried
11
out;
12
(d) the holder of an approved arrangement that covers export
13
operations in relation to relevant goods;
14
(e) the holder of an export licence that covers export operations
15
in relation to relevant goods.
16
Note:
The reference to this Act includes a reference to instruments made
17
under this Act (see the definition of
this Act
in section 12).
18
(2) However, an application for an exemption must not be made in
19
relation to:
20
(a) goods that are permanently prohibited goods; or
21
(b) goods the export of which is prohibited by a temporary
22
prohibition determination.
23
(3) An application for an exemption must:
24
(a) if the Secretary has approved, in writing, a manner for
25
making an application--be made in an approved manner; and
26
(b) if the Secretary has approved a form for making an
27
application:
28
(i) include the information required by the form; and
29
(ii) be accompanied by any documents required by the
30
form; and
31
(c) set out the basis on which the exemption is sought; and
32
(d) include the information (if any) prescribed by the rules; and
33
Exporting goods
Chapter 2
Exemptions
Part 2
Exemptions
Division 2
Section 54
No. , 2019
Export Control Bill 2019
69
(e) be accompanied by any documents prescribed by the rules;
1
and
2
(f) be made:
3
(i) within the period prescribed by the rules; or
4
(ii) if the Secretary allows a different period--within that
5
period.
6
Note:
A person may commit an offence or be liable to a civil penalty if the
7
person makes a false or misleading statement in an application or
8
provides false or misleading information or documents (see
9
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
10
sections 367, 368 and 369 of this Act).
11
(4) The Secretary may accept any information or document previously
12
given to the Secretary in connection with an application made
13
under this Act, or a notice of intention to export a consignment of
14
prescribed goods given under this Act, as satisfying any
15
requirement to give that information or document under
16
subsection (3).
17
(5) An application is taken not to have been made if the application
18
does not comply with the requirements referred to in subsection (3)
19
for the application.
20
54 Secretary must decide whether to grant exemption
21
Secretary must decide whether to grant exemption
22
(1) On receiving an application made under section 53 for an
23
exemption, the Secretary must decide:
24
(a) to grant the exemption; or
25
(b) to refuse to grant the exemption.
26
Note:
An application that does not comply with the requirements referred to
27
in subsection 53(3) for the application is taken not to have been made
28
(see subsection 53(5)).
29
Secretary may request further information or documents
30
(2) The Secretary may, in writing, request the applicant to give the
31
Secretary further specified information or documents relevant to
32
the application.
33
Chapter 2
Exporting goods
Part 2
Exemptions
Division 2
Exemptions
Section 55
70
Export Control Bill 2019
No. , 2019
Grounds for granting exemption
1
(3) The Secretary may grant the exemption if the Secretary is satisfied,
2
having regard to any matter prescribed by the rules or any other
3
matter that the Secretary considers relevant, that:
4
(a) any requirements prescribed by the rules are met; and
5
(b) it is appropriate to grant the exemption.
6
Note:
An exemption must not be varied (see subsection 58(1)).
7
55 Exemption may be granted subject to conditions
8
(1) The Secretary may grant an exemption under paragraph 54(1)(a) in
9
relation to relevant goods, subject to any conditions that the
10
Secretary considers are necessary.
11
Note:
Conditions of an exemption may be varied (see section 58).
12
(2) In considering whether it is necessary to impose conditions on an
13
exemption, the Secretary must have regard to the matters
14
prescribed by the rules.
15
Fault-based offence
16
(3) A person commits an offence if:
17
(a) the person is the holder of an exemption in force under this
18
Part; and
19
(b) the person engages in conduct; and
20
(c) the conduct contravenes a condition of the exemption.
21
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
22
Civil penalty provision
23
(4) A person is liable to a civil penalty if:
24
(a) the person is the holder of an exemption in force under this
25
Part; and
26
(b) the person contravenes a condition of the exemption.
27
Civil penalty:
600 penalty units.
28
Exporting goods
Chapter 2
Exemptions
Part 2
Exemptions
Division 2
Section 56
No. , 2019
Export Control Bill 2019
71
56 Notice of decision
1
Instrument of exemption
2
(1) If the Secretary decides to grant an exemption under
3
paragraph 54(1)(a) in relation to relevant goods, the Secretary must
4
give the applicant for the exemption an instrument of exemption
5
stating the following:
6
(a) the kind of goods covered by the exemption;
7
(b) if applicable, each importing country covered by the
8
exemption;
9
(c) the basis on which the exemption has been granted;
10
(d) the provisions of this Act covered by the exemption;
11
(e) the date (which must not be retrospective) when the
12
exemption takes effect;
13
(f) the period during which the exemption remains in force (as
14
prescribed by rules made for the purposes of
15
paragraph 57(b));
16
(g) any conditions of the exemption;
17
(h) any other information prescribed by the rules.
18
(2) An instrument of exemption given under subsection (1) is not a
19
legislative instrument.
20
Notice of refusal
21
(3) If the Secretary decides to refuse to grant an exemption under
22
paragraph 54(1)(b), the Secretary must notify the applicant, in
23
writing, of the decision. The notice must include the reasons for the
24
decision.
25
57 Period of effect of exemption
26
An exemption granted under paragraph 54(1)(a):
27
(a) takes effect on the date stated in the instrument of exemption
28
under paragraph 56(1)(e); and
29
(b) remains in force as prescribed by the rules unless it is
30
revoked under section 59.
31
Chapter 2
Exporting goods
Part 2
Exemptions
Division 2
Exemptions
Section 58
72
Export Control Bill 2019
No. , 2019
58 Variation of conditions of exemption
1
(1) Except as provided by subsection (2), an exemption that is in force
2
under this Part must not be varied.
3
Note:
If changes to an exemption are needed, an application for a new
4
exemption must be made.
5
(2) If the Secretary considers it necessary to do so, the Secretary may
6
vary the conditions of an exemption that is in force under this Part
7
(including by imposing new conditions).
8
(3) In considering whether it is necessary to vary the conditions of an
9
exemption, the Secretary must have regard to the matters
10
prescribed by the rules.
11
(4) If the Secretary varies the conditions of an exemption, the
12
Secretary must give the holder of the exemption a written notice
13
stating the following:
14
(a) the varied conditions and any new conditions;
15
(b) the reason for varying the conditions;
16
(c) the date the varied conditions take effect;
17
(d) any other information prescribed by the rules.
18
59 Revocation of exemption
19
(1) The Secretary may revoke an exemption that is in force under this
20
Part.
21
(2) In considering whether to revoke an exemption, the Secretary must
22
have regard to the matters prescribed by the rules.
23
(3) If the Secretary decides to revoke an exemption, the Secretary must
24
give the holder of the exemption a written notice stating the
25
following:
26
(a) that the exemption is to be revoked;
27
(b) the reasons for the revocation;
28
(c) the date the revocation is to take effect.
29
Exporting goods
Chapter 2
Exemptions
Part 2
Exemptions
Division 2
Section 60
No. , 2019
Export Control Bill 2019
73
60 Effect of exemption
1
If an exemption from one or more provisions of this Act (the
2
exempted provisions
) is in force under this Part in relation to
3
relevant goods, the exempted provisions do not apply in relation to
4
the export of the goods.
5
Chapter 2
Exporting goods
Part 3
Government certificates
Division 1
Introduction
Section 61
74
Export Control Bill 2019
No. , 2019
Part 3--Government certificates
1
Division 1--Introduction
2
61 Simplified outline of this Part
3
The rules may make provision for and in relation to the issue of
4
government certificates in relation to prescribed goods and
5
non-prescribed goods that are to be, or that have been, exported.
6
In deciding whether to make rules in relation to goods that are not
7
animals, plants or food, the Secretary may have regard to relevant
8
matters, including importing country requirements, sanitary
9
matters, Australian laws and standards, Australia's international
10
rights and obligations and international standards.
11
A person may apply to an issuing body for the issue of a
12
government certificate in relation to goods that are to be, or that
13
have been, exported. The issuing body is a person or body
14
prescribed by the rules in relation to the goods or, if no person or
15
body is prescribed in relation to the goods, the issuing body is the
16
Secretary.
17
The issuing body must decide whether to issue a government
18
certificate. The Secretary may exercise certain powers in relation to
19
an application for a government certificate.
20
Certain issuing bodies may charge a fee in relation to things done
21
in the performance of the issuing body's functions or the exercise
22
of the issuing body's powers under this Act.
23
A government certificate may be issued electronically or in another
24
form that is acceptable to the relevant importing country.
25
A government certificate has effect for a particular period.
26
Exporting goods
Chapter 2
Government certificates
Part 3
Introduction
Division 1
Section 61
No. , 2019
Export Control Bill 2019
75
A government certificate may be revoked and may be required to
1
be returned.
2
Chapter 2
Exporting goods
Part 3
Government certificates
Division 2
Rule-making powers
Section 62
76
Export Control Bill 2019
No. , 2019
Division 2--Rule-making powers
1
62 Rules may make provision for and in relation to government
2
certificates
3
(1) The rules may make provision for and in relation to the issue of
4
government certificates in relation to goods that are to be, or that
5
have been, exported.
6
(2) Without limiting subsection (1), the rules:
7
(a) may specify:
8
(i) kinds of goods in relation to which a government
9
certificate may be issued; and
10
(ii) kinds of goods in relation to which a government
11
certificate must not be issued; and
12
(iii) kinds of government certificates that may be issued in
13
relation to specified kinds of goods; and
14
(b) may make provision for and in relation to any of the
15
following:
16
(i) applications for a government certificate in relation to a
17
kind of goods;
18
(ii) the matters that may be stated in a government
19
certificate in relation to a kind of goods;
20
(iii) requirements that must be complied with in relation to a
21
kind of goods before a government certificate in relation
22
to goods of that kind may be issued.
23
(3) In deciding whether to make rules for the purposes of
24
subparagraph (2)(a)(i) specifying a kind of non-prescribed goods
25
referred to in paragraph (d) of the definition of
goods
in section 12,
26
the Secretary may have regard to the following matters:
27
(a) any importing country requirements relating to goods of that
28
kind;
29
(b) sanitary matters (being matters relating to food safety, animal
30
health or human health) and phytosanitary matters (being
31
matters relating to plant health) relating to goods of that kind;
32
Exporting goods
Chapter 2
Government certificates
Part 3
Rule-making powers
Division 2
Section 63
No. , 2019
Export Control Bill 2019
77
(c) any Australian laws and standards relating to goods of that
1
kind;
2
(d) Australia's rights and obligations relating to goods of that
3
kind under any international agreements to which Australia is
4
a party;
5
(e) any international standards relating to goods of that kind;
6
(f) any other matter the Secretary considers relevant.
7
63 Issuing bodies
8
(1) The issuing body for a government certificate in relation to a kind
9
of goods that are to be, or that have been, exported is:
10
(a) a person or body prescribed by the rules in relation to goods
11
of that kind; or
12
(b) if no person or body is prescribed by the rules in relation to
13
goods of that kind--the Secretary.
14
(2) For the purposes of subsection (1), the rules may provide that one
15
or more of the following is an issuing body for a government
16
certificate in relation to a kind of goods that are to be, or that have
17
been, exported:
18
(a) the Secretary;
19
(b) a person or body that is covered by an approved arrangement
20
that provides for the person or body to issue government
21
certificates in relation to goods of that kind;
22
(c) a specified person or body.
23
64 Certain issuing bodies may charge fees
24
(1) An issuing body for a government certificate may charge a fee
25
under this section in relation to things done in the performance of
26
the issuing body's functions or the exercise of the issuing body's
27
powers under this Act.
28
(2) A fee must not be such as to amount to taxation.
29
(3) This section does not apply in relation to the Secretary.
30
Chapter 2
Exporting goods
Part 3
Government certificates
Division 2
Rule-making powers
Section 64
78
Export Control Bill 2019
No. , 2019
Note:
Section 399 provides for fees to be charged in relation to the
1
performance of functions or the exercise of powers by the Secretary as
2
an issuing body.
3
Exporting goods
Chapter 2
Government certificates
Part 3
Issue of government certificate
Division 3
Section 65
No. , 2019
Export Control Bill 2019
79
Division 3--Issue of government certificate
1
65 Application for government certificate
2
(1) A person may apply to an issuing body for a government certificate
3
in relation to a kind of goods that are to be, or that have been,
4
exported.
5
(2) An application for a government certificate must:
6
(a) if the Secretary has approved, in writing, a manner for
7
making an application--be made in an approved manner; and
8
(b) if the Secretary has approved a form for making an
9
application:
10
(i) include the information required by the form; and
11
(ii) be accompanied by any documents required by the
12
form; and
13
(c) include the information (if any) prescribed by the rules; and
14
(d) be accompanied by any documents prescribed by the rules.
15
Note 1:
The Secretary may approve a single form that may be used to apply
16
for an export permit for a kind of prescribed goods and a government
17
certificate in relation to the goods (see subsection 239(4)).
18
Note 2:
A person may commit an offence or be liable to a civil penalty if the
19
person makes a false or misleading statement in an application or
20
provides false or misleading information or documents (see
21
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
22
sections 367, 368 and 369 of this Act).
23
(3) The issuing body may accept any information or document
24
previously given to an issuing body in connection with an
25
application made under this Act, or a notice of intention to export a
26
consignment of goods given under this Act, as satisfying any
27
requirement to give that information or document under
28
subsection (2).
29
(4) An application is taken not to have been made if the application
30
does not comply with the requirements referred to in subsection (2)
31
for the application.
32
Chapter 2
Exporting goods
Part 3
Government certificates
Division 3
Issue of government certificate
Section 66
80
Export Control Bill 2019
No. , 2019
66 Additional or corrected information
1
(1) A person who has made an application to an issuing body under
2
section 65 must comply with subsection (2) of this section if:
3
(a) the person becomes aware that information included in the
4
application, or information or a document given to the
5
issuing body in relation to the application, was incomplete or
6
incorrect; or
7
(b) a change prescribed by the rules occurs.
8
(2) The person must, as soon as practicable, give the issuing body
9
additional or corrected information, to the extent that it is relevant
10
to the issuing body's consideration of the application.
11
Note 1:
A person may commit an offence or be liable to a civil penalty if the
12
person makes a false or misleading statement in an application or
13
provides false or misleading information or documents (see
14
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
15
sections 367, 368 and 369 of this Act).
16
Note 2:
This section is not subject to the privilege against self-incrimination
17
(see section 426).
18
Civil penalty provision
19
(3) A person is liable to a civil penalty if:
20
(a) the person is required to give information to the issuing body
21
under subsection (2); and
22
(b) the person fails to comply with the requirement.
23
Civil penalty:
60 penalty units.
24
67 Issuing body must decide whether to issue government certificate
25
(1) On receiving an application made under section 65 for a
26
government certificate in relation to a kind of goods, the issuing
27
body must decide:
28
(a) to issue the certificate; or
29
(b) to refuse to issue the certificate.
30
Note 1:
An application that does not comply with the requirements referred to
31
in subsection 65(2) for the application is taken not to have been made
32
(see subsection 65(4)).
33
Exporting goods
Chapter 2
Government certificates
Part 3
Issue of government certificate
Division 3
Section 67
No. , 2019
Export Control Bill 2019
81
Note 2:
A decision in relation to the application may be made by the operation
1
of a computer program (see section 286).
2
(2) The issuing body may, in writing, request the applicant to give the
3
issuing body further specified information or documents relevant to
4
the application.
5
Note:
If the issuing body is the Secretary, the Secretary may also exercise
6
powers under section 68.
7
Grounds for refusing to issue government certificate
8
(3) The issuing body may refuse to issue a government certificate in
9
relation to the goods if:
10
(a) the issuing body is not satisfied, having regard to any matter
11
that the issuing body considers relevant, that:
12
(i) the requirements of this Act in relation to the export of
13
the goods have been complied with, or will be complied
14
with before the goods are imported into the importing
15
country; or
16
(ii) any importing country requirements relating to the
17
goods have been met, or will be met before the goods
18
are imported into the importing country; or
19
(iii) the matters to be stated in the government certificate in
20
relation to the goods are true and correct; or
21
(b) the issuing body reasonably believes that the applicant:
22
(i) made a false, misleading or incomplete statement in the
23
application for the certificate; or
24
(ii) gave false, misleading or incomplete information or
25
documents to the issuing body or to another person
26
performing functions or exercising powers under this
27
Act; or
28
(iii) gave false, misleading or incomplete information or
29
documents to the Secretary or the Department under a
30
prescribed agriculture law; or
31
(c) any information or documents requested under subsection (2)
32
are not given to the issuing body within a reasonable period
33
after the request was made; or
34
(d) the applicant refused to consent to a request by a person to
35
enter premises of the applicant:
36
Chapter 2
Exporting goods
Part 3
Government certificates
Division 3
Issue of government certificate
Section 68
82
Export Control Bill 2019
No. , 2019
(i) to conduct an audit of export operations carried out in
1
relation to the goods under Part 1 of Chapter 9; or
2
(ii) to carry out an assessment of the goods under Part 2 of
3
that Chapter; or
4
(e) the applicant refused to cooperate with a request made by the
5
issuing body, or any other person performing functions or
6
exercising powers under this Act, in relation to the goods; or
7
(f) the issuing body reasonably believes that the applicant has
8
contravened a requirement of this Act in relation to the
9
goods; or
10
(g) circumstances prescribed by the rules exist.
11
Notice of refusal
12
(4) If the issuing body decides not to issue a government certificate in
13
relation to the goods, the issuing body must notify the applicant, in
14
writing, of the decision.
15
68 Powers of Secretary in relation to application
16
If an application for a government certificate in relation to a kind
17
of goods is made to the Secretary under section 65, the Secretary
18
may do anything the Secretary considers necessary in relation to
19
the application, including the following:
20
(a) request, in writing, the applicant, or another person who the
21
Secretary considers may have information or documents
22
relevant to the application, to give the Secretary further
23
specified information or documents relevant to the
24
application;
25
(b) require an audit of export operations carried out in relation to
26
the goods to be conducted under Part 1 of Chapter 9;
27
(c) require an assessment of the goods to be carried out under
28
Part 2 of Chapter 9;
29
(d) request the applicant to give the Secretary a written
30
statement, signed and dated by the applicant, verifying that:
31
(i) the requirements of this Act in relation to the export of
32
the goods have been complied with, or will be complied
33
with before the goods are imported into the importing
34
country; and
35
Exporting goods
Chapter 2
Government certificates
Part 3
Issue of government certificate
Division 3
Section 69
No. , 2019
Export Control Bill 2019
83
(ii) any importing country requirements relating to the
1
goods have been met, or will be met before the goods
2
are imported into the importing country; and
3
(iii) the matters to be stated in the certificate are true and
4
correct;
5
(e) take, test or analyse samples of goods, or from equipment or
6
other things, that are relevant to the application;
7
(f) arrange for another person with appropriate qualifications or
8
expertise to take, test or analyse samples of goods, or from
9
equipment or other things, that are relevant to the application;
10
(g) any other thing prescribed by the rules.
11
Note 1:
See Division 2 of Part 6 of Chapter 11 in relation to taking, testing and
12
analysing samples.
13
Note 2:
An audit of export operations carried out in relation to a kind of
14
non-prescribed goods by a person to whom a government certificate
15
has been issued may be conducted at any time during the period of 18
16
months after the certificate was issued (see subsection 266(4)).
17
69 Applications in relation to certain kinds of non-prescribed goods
18
(1) This section applies in relation to an application to the Secretary
19
for a government certificate that relates to a kind of goods (the
20
relevant goods
) referred to in paragraph (d) of the definition of
21
goods
in section 12 that:
22
(a) are non-prescribed goods; and
23
(b) are not specified by rules made for the purposes of
24
subparagraph 62(2)(a)(i) or (ii).
25
(2) For the purposes of making a decision in relation to the application,
26
the Secretary may have regard to the following matters (in addition
27
to the matters referred to in subsection 67(3)):
28
(a) sanitary matters (being matters relating to food safety, animal
29
health or human health) and phytosanitary matters (being
30
matters relating to plant health) relating to the relevant goods;
31
(b) any Australian laws and standards relating to the relevant
32
goods;
33
(c) Australia's rights and obligations relating to the relevant
34
goods under any international agreements to which Australia
35
is a party;
36
Chapter 2
Exporting goods
Part 3
Government certificates
Division 3
Issue of government certificate
Section 70
84
Export Control Bill 2019
No. , 2019
(d) any international standards relating to the relevant goods;
1
(e) any other matter the Secretary considers relevant.
2
(3) However, the Secretary need not have regard to the matters
3
referred to in subsection (2) if:
4
(a) goods of the same kind as the relevant goods have previously
5
been exported to a country; and
6
(b) the Secretary has previously issued a government certificate
7
in relation to goods of that kind that have been exported to
8
that country.
9
70 Government certificate for goods that are to be, or that have
10
been, exported from certain external Territories
11
If:
12
(a) this Part extends to an external Territory or an area adjacent
13
to that external Territory under subsection 8(2); and
14
(b) a government certificate is issued in relation to a kind of
15
goods that are to be, or that have been, exported from that
16
Territory or area;
17
the certificate may state that the goods are from that Territory.
18
71 Manner of issuing government certificate
19
A government certificate in relation to a kind of goods may be
20
issued:
21
(a) electronically; or
22
(b) in another form acceptable to the country to which the goods
23
are to be, or have been, exported.
24
72 Period of effect of government certificate
25
(1) A government certificate in relation to a kind of goods takes effect:
26
(a) on the date it is issued; or
27
(b) if a later date is stated in the certificate--on that later date.
28
(2) A government certificate that relates to a single consignment of
29
goods remains in force until the earlier of the following:
30
(a) any expiry date specified in the certificate;
31
Exporting goods
Chapter 2
Government certificates
Part 3
Issue of government certificate
Division 3
Section 72
No. , 2019
Export Control Bill 2019
85
(b) the day the certificate is accepted, or rejected, by the
1
importing country.
2
(3) A government certificate that relates to 2 or more consignments of
3
goods remains in force until the earliest of the following:
4
(a) any expiry date specified in the certificate;
5
(b) the day any consignment of the goods is rejected by the
6
importing country;
7
(c) the day on which the last consignment of the goods is
8
accepted by the importing country.
9
(4) Despite subsections (2) and (3), a government certificate in relation
10
to a kind of goods ceases to be in force if:
11
(a) the goods are no longer intended to be exported to the
12
country in relation to which the certificate was issued; or
13
(b) the certificate is revoked; or
14
(c) circumstances prescribed by the rules exist.
15
Chapter 2
Exporting goods
Part 3
Government certificates
Division 4
Other matters
Section 73
86
Export Control Bill 2019
No. , 2019
Division 4--Other matters
1
73 Secretary may require assessment of goods
2
(1) This section applies if a government certificate is in force in
3
relation to a kind of non-prescribed goods.
4
(2) The Secretary may require an assessment of the goods to be carried
5
out under Part 2 of Chapter 9 if the Secretary reasonably believes
6
that:
7
(a) the requirements of this Act have not been complied with, or
8
are not likely to be complied with before the goods are
9
imported into the importing country; or
10
(b) an importing country requirement relating to the goods will
11
not be, or is not likely to be, met before the goods are
12
imported into the importing country; or
13
(c) the matters stated in the government certificate in relation to
14
the goods are no longer true and correct; or
15
(d) circumstances prescribed by the rules exist.
16
74 Additional or corrected information in relation to application for
17
government certificate etc.
18
(1) The holder of a government certificate in relation to a kind of
19
goods must comply with subsection (2) if:
20
(a) the holder becomes aware that information included in the
21
application for the certificate made by the holder, or
22
information or a document given to the issuing body in
23
relation to such an application, was incomplete or incorrect;
24
or
25
(b) a change prescribed by the rules occurs.
26
(2) The holder of the government certificate must, as soon as
27
practicable, give the issuing body additional or corrected
28
information, to the extent that it is relevant to assessing whether:
29
(a) the requirements of this Act in relation to the export of the
30
goods in relation to which the certificate was issued have
31
Exporting goods
Chapter 2
Government certificates
Part 3
Other matters
Division 4
Section 75
No. , 2019
Export Control Bill 2019
87
been complied with, or will be complied with before the
1
goods are imported into the importing country; or
2
(b) the importing country requirements relating to the goods in
3
relation to which the certificate was issued have been met, or
4
will be met before the goods are imported into the importing
5
country; or
6
(c) the matters stated in the government certificate in relation to
7
the goods are true and correct.
8
Note 1:
A person may commit an offence or be liable to a civil penalty if the
9
person makes a false or misleading statement in an application or
10
provides false or misleading information or documents (see
11
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
12
sections 367, 368 and 369 of this Act).
13
Note 2:
This section is not subject to the privilege against self-incrimination
14
(see section 426).
15
Civil penalty provision
16
(3) A person is liable to a civil penalty if:
17
(a) the person is required to give information to the issuing body
18
under subsection (2); and
19
(b) the person fails to comply with the requirement.
20
Civil penalty:
60 penalty units.
21
75 Revocation of government certificate
22
(1) The issuing body that issued a government certificate in relation to
23
a kind of goods, or the Secretary, may revoke the certificate if the
24
issuing body or the Secretary (as the case may be) reasonably
25
believes any of the following:
26
(a) information specified in the certificate is incorrect;
27
(b) this Act has not been, is not being or will not be complied
28
with in relation to the goods;
29
(c) an importing country requirement relating to the goods will
30
not be, or is not likely to be, met;
31
(d) the integrity of the goods cannot be ensured;
32
(e) the holder of the certificate has engaged in conduct that:
33
Chapter 2
Exporting goods
Part 3
Government certificates
Division 4
Other matters
Section 76
88
Export Control Bill 2019
No. , 2019
(i) intimidated a person performing functions or exercising
1
powers under this Act; or
2
(ii) hindered or prevented a person from performing
3
functions or exercising powers under this Act;
4
(f) the holder of the certificate:
5
(i) made a false, misleading or incomplete statement in the
6
application for the certificate; or
7
(ii) gave false, misleading or incomplete information or
8
documents to the issuing body or to another person
9
performing functions or exercising powers under this
10
Act; or
11
(iii) gave false, misleading or incomplete information or
12
documents to the Secretary or the Department under a
13
prescribed agriculture law;
14
(g) the certificate has not, or is not being, kept securely as
15
required by rules made for the purposes of section 408;
16
(h) circumstances prescribed by the rules exist.
17
Note:
A government certificate that has been issued in relation to a kind of
18
goods is taken to have been revoked if a temporary prohibition
19
determination applies in relation to the goods (see subsection 26(1)).
20
(2) If a government certificate is revoked by the issuing body or the
21
Secretary under subsection (1), the issuing body or the Secretary
22
must notify the holder of the certificate, in writing, of the
23
revocation.
24
76 Return of government certificate
25
(1) The rules may require a person who is in possession of a
26
government certificate that was issued to the person to return the
27
certificate to the issuing body that issued the certificate:
28
(a) in the circumstances prescribed by the rules; and
29
(b) at the time, or within the period, prescribed by the rules.
30
Civil penalty provision
31
(2) A person is liable to a civil penalty if:
32
Exporting goods
Chapter 2
Government certificates
Part 3
Other matters
Division 4
Section 76
No. , 2019
Export Control Bill 2019
89
(a) the person is required to return a government certificate to an
1
issuing body under rules made for the purposes of
2
subsection (1); and
3
(b) the person fails to comply with the requirement.
4
Civil penalty:
60 penalty units.
5
Chapter 3
Accredited properties
Part 1
Introduction
Section 77
90
Export Control Bill 2019
No. , 2019
Chapter 3--Accredited properties
1
Part 1--Introduction
2
3
77 Simplified outline of this Chapter
4
The Secretary may, on application by the manager of a property,
5
accredit the property for a kind of export operations in relation to a
6
kind of prescribed goods.
7
A property may be accredited for more than one kind of export
8
operations in relation to more than one kind of prescribed goods
9
for export to one or more places.
10
The accreditation of a property is subject to certain conditions.
11
The accreditation of a property may remain in force indefinitely or
12
may cease to be in force on an expiry date.
13
If there is an expiry date for the accreditation of a property, the
14
accreditation may be renewed.
15
The matters covered by the accreditation of a property or the
16
conditions of the accreditation may be varied.
17
The accreditation of a property may be suspended wholly or in
18
part, and may be revoked.
19
A show cause notice must be given to the manager of an accredited
20
property before the accreditation may be varied, suspended or
21
revoked (except in serious and urgent cases or if the manager has
22
requested the variation, suspension or revocation).
23
The manager of an accredited property must comply with certain
24
obligations.
25
Accredited properties
Chapter 3
Application for accreditation
Part 2
Section 78
No. , 2019
Export Control Bill 2019
91
Part 2--Application for accreditation
1
2
78 Application for accreditation of property
3
(1) The manager of a property may apply to the Secretary to accredit
4
the property for a kind of export operations in relation to a kind of
5
prescribed goods.
6
(2) An application:
7
(a) may relate to more than one kind of export operations and
8
more than one kind of prescribed goods; and
9
(b) may, but is not required to, specify one or more places to
10
which the goods are to be exported.
11
Note 1:
The export of a kind of prescribed goods may be prohibited unless
12
export operations in relation to the goods have been carried out at an
13
accredited property (see section 29 and rules made for the purposes of
14
that section).
15
Note 2:
Section 377 sets out requirements for applications.
16
79 Secretary must decide whether to accredit property
17
(1) On receiving an application under section 78 to accredit a property,
18
the Secretary must decide:
19
(a) to accredit the property; or
20
(b) to refuse to accredit the property.
21
Note 1:
See section 379 for matters relating to dealing with applications.
22
Note 2:
If the application is to accredit the property for more than one kind of
23
export operations in relation to more than one kind of prescribed
24
goods for export to more than one place, the Secretary may decide to
25
accredit the property for some or all of those kinds of export
26
operations in relation to some or all of those kinds of goods for export
27
to some or all of those places.
28
Note 3:
If the Secretary does not make a decision in relation to the application
29
within the consideration period for the application, the Secretary is
30
taken to have refused the application at the end of that period (see
31
subsection 379(2)).
32
Note 4:
A decision to refuse to accredit a property for a kind of export
33
operations in relation to a kind of prescribed goods is a reviewable
34
Chapter 3
Accredited properties
Part 2
Application for accreditation
Section 79
92
Export Control Bill 2019
No. , 2019
decision (see Part 2 of Chapter 11) and the Secretary must give the
1
applicant written notice of the decision (see section 382).
2
(2) The Secretary may accredit the property for a kind of export
3
operations in relation to a kind of prescribed goods and, if
4
applicable, a specified place to which the goods may be exported if
5
the Secretary is satisfied, having regard to any matter that the
6
Secretary considers relevant, that the following requirements are
7
met:
8
(a) either:
9
(i) all relevant Commonwealth liabilities of the manager of
10
the property, or relating to the property, have been paid
11
or are taken to have been paid; or
12
(ii) if one or more relevant Commonwealth liabilities of the
13
manager, or relating to the property, have not been paid
14
or are not taken to have been paid--the non-payment is
15
due to exceptional circumstances;
16
(b) any other requirements prescribed by the rules.
17
Note:
For the purposes of paragraph (a), a relevant Commonwealth liability
18
of a person is taken to have been paid in certain circumstances (see
19
section 431).
20
(3) Without limiting paragraph (2)(b), the rules may prescribe
21
requirements in relation to any or all of the following:
22
(a) the manager of a property;
23
(b) the kind of property;
24
(c) a kind of export operations;
25
(d) a kind of prescribed goods;
26
(e) importing country requirements relating to a kind of export
27
operations or a kind of prescribed goods.
28
(4) If the Secretary accredits the property, the Secretary may, if the
29
Secretary considers it appropriate, set an expiry date for the
30
accreditation.
31
Note 1:
If there is no expiry date for the accreditation of a property, the
32
accreditation remains in force unless it is revoked (see
33
subsection 82(1)).
34
Note 2:
A decision to set an expiry date for the accreditation of a property is a
35
reviewable decision (see Part 2 of Chapter 11).
36
Accredited properties
Chapter 3
Application for accreditation
Part 2
Section 80
No. , 2019
Export Control Bill 2019
93
(5) The Secretary may set an expiry date for the accreditation of the
1
property under subsection (4) even if rules made for the purposes
2
of subsection 82(5) apply in relation to the accreditation.
3
80 Conditions of accreditation
4
(1) If the Secretary accredits a property for a kind of export operations
5
in relation to a kind of prescribed goods, the accreditation is
6
subject to:
7
(a) the conditions provided by this Act; and
8
(b) the conditions prescribed by the rules (other than any of those
9
conditions that the Secretary decides are not to be conditions
10
of the accreditation); and
11
(c) any additional conditions that the Secretary considers
12
appropriate and that are specified in the notice given to the
13
applicant under section 81.
14
Note 1:
The manager of an accredited property may commit an offence or be
15
liable to a civil penalty if a condition of the accreditation is
16
contravened (see section 106).
17
Note 2:
The accreditation of a property may be suspended or revoked if a
18
condition of the accreditation is contravened (see sections 94 and
19
102).
20
Note 3:
A decision to accredit a property subject to additional conditions is a
21
reviewable decision (see Part 2 of Chapter 11).
22
Note 4:
Part 7 sets out additional obligations of the manager of an accredited
23
property.
24
(2) Without limiting paragraph (1)(b), the rules may prescribe
25
conditions in relation to any or all of the following:
26
(a) the manager of a property;
27
(b) the kind of property;
28
(c) a kind of export operations;
29
(d) a kind of prescribed goods;
30
(e) importing country requirements relating to a kind of export
31
operations or a kind of prescribed goods.
32
(3) For the purposes of this Act, conditions to which the accreditation
33
of a property is subject under subsection (1) or section 85 are
34
conditions of the accreditation.
35
Chapter 3
Accredited properties
Part 2
Application for accreditation
Section 81
94
Export Control Bill 2019
No. , 2019
81 Notice of decision
1
If the Secretary accredits a property, the Secretary must give the
2
applicant a written notice stating the following information:
3
(a) the accreditation number allocated to the property;
4
(b) each kind of export operations and each kind of prescribed
5
goods covered by the accreditation;
6
(c) if applicable, each place to which a kind of prescribed goods
7
covered by the accreditation may be exported;
8
(d) the date the accreditation takes effect;
9
(e) that the accreditation remains in force indefinitely or the
10
expiry date for the accreditation;
11
(f) any conditions prescribed by the rules that the Secretary has
12
decided are not to be conditions of the accreditation;
13
(g) any additional conditions of the accreditation;
14
(h) the name of the manager of the property;
15
(i) any other information prescribed by the rules.
16
82 Period of effect of accreditation
17
Accreditations that have no expiry date
18
(1) If there is no expiry date for the accreditation of a property, the
19
accreditation remains in force unless it is revoked under Part 6 or
20
under rules made for the purposes of subsection 109(3).
21
Accreditations that have an expiry date
22
(2) If there is an expiry date for the accreditation of a property
23
(including an accreditation that has been renewed under Part 3), the
24
accreditation remains in force until the end of that expiry date
25
unless:
26
(a) the accreditation is renewed under Part 3 on or before that
27
date; or
28
(b) the accreditation is revoked under Part 6 or under rules made
29
for the purposes of subsection 109(3) on or before that date.
30
(3) There is an expiry date for the accreditation of a property if:
31
Accredited properties
Chapter 3
Application for accreditation
Part 2
Section 82
No. , 2019
Export Control Bill 2019
95
(a) rules made for the purposes of subsection (5) apply in
1
relation to the accreditation; or
2
(b) an expiry date for the accreditation set under subsection 79(4)
3
or 84(3) or paragraph 90(1)(c) or (d) is in force in relation to
4
the accreditation.
5
(4) The
expiry date
for the accreditation of a property is:
6
(a) if rules made for the purposes of subsection (5) apply in
7
relation to the accreditation and no expiry date set under
8
subsection 79(4) or 84(3) or paragraph 90(1)(c) or (d) is in
9
force in relation to the accreditation--the last day of the
10
period prescribed by the rules; or
11
(b) if an expiry date for the accreditation set under
12
subsection 79(4) or 84(3) or paragraph 90(1)(c) or (d) is in
13
force in relation to the accreditation--that date.
14
Rules may prescribe period of effect of accreditation
15
(5) The rules may prescribe the period during which the accreditation
16
of a property remains in force. The rules may apply in relation to:
17
(a) accreditations of properties generally; or
18
(b) accreditations of properties for a kind of export operations in
19
relation to a kind of prescribed goods and, if applicable, a
20
place to which the goods may be exported.
21
Chapter 3
Accredited properties
Part 3
Renewal of accreditation
Section 83
96
Export Control Bill 2019
No. , 2019
Part 3--Renewal of accreditation
1
2
83 Application to renew accreditation of property
3
(1) This section applies in relation to an accredited property (including
4
a property in relation to which a suspension is in effect under
5
Part 5) if there is an expiry date for the accreditation.
6
Note:
See subsections 82(3) and (4) in relation to the expiry date for the
7
accreditation of a property.
8
(2) The manager of the property may apply to the Secretary to renew
9
the accreditation of the property.
10
Note:
Section 377 sets out requirements for applications.
11
(3) An application for renewal:
12
(a) may relate to more than one kind of export operations and
13
more than one kind of prescribed goods; and
14
(b) may, but is not required to, specify one or more places to
15
which the goods are to be exported.
16
(4) An application for renewal must be made:
17
(a) within the period prescribed by the rules; or
18
(b) if the Secretary allows a longer period--within that longer
19
period.
20
(5) If an application to renew the accreditation of a property is made
21
after the period applying under subsection (4):
22
(a) the application is taken to be an application to accredit the
23
property; and
24
(b) Part 2 applies in relation to the application; and
25
(c) the other provisions of this Part do not apply in relation to the
26
application.
27
84 Secretary must decide whether to renew accreditation
28
(1) On receiving an application under section 83 to renew the
29
accreditation of a property, the Secretary must decide:
30
Accredited properties
Chapter 3
Renewal of accreditation
Part 3
Section 84
No. , 2019
Export Control Bill 2019
97
(a) to renew the accreditation; or
1
(b) to refuse to renew the accreditation.
2
Note 1:
See section 379 for matters relating to dealing with applications.
3
Note 2:
If the application is to renew the accreditation of the property for more
4
than one kind of export operations in relation to more than one kind of
5
prescribed goods for export to more than one place, the Secretary may
6
decide to renew the accreditation for some or all of those kinds of
7
export operations in relation to some or all of those kinds of goods for
8
export to some or all of those places.
9
Note 3:
If the Secretary does not make a decision in relation to the application
10
within the consideration period for the application, the Secretary is
11
taken to have refused the application at the end of that period (see
12
subsection 379(2)).
13
Note 4:
A decision to refuse to renew the accreditation of the property for a
14
kind of export operations in relation to a kind of prescribed goods is a
15
reviewable decision (see Part 2 of Chapter 11) and the Secretary must
16
give the applicant written notice of the decision (see section 382).
17
(2) The Secretary may refuse to renew the accreditation of the property
18
for a kind of export operations in relation to a kind of prescribed
19
goods and, if applicable, a specified place to which the goods may
20
be exported if the Secretary is not satisfied, having regard to any
21
matter that the Secretary considers relevant, of one or more of the
22
following:
23
(a) the requirements prescribed by rules made for the purposes of
24
paragraph 79(2)(b) are continuing to be met;
25
(b) either:
26
(i) all relevant Commonwealth liabilities of the manager of
27
the property, or relating to the property, have been paid
28
or are taken to have been paid; or
29
(ii) if one or more relevant Commonwealth liabilities of the
30
manager, or relating to the property, have not been paid
31
or are not taken to have been paid--the non-payment is
32
due to exceptional circumstances;
33
(c) the manager of the property has complied with the
34
requirements of this Act;
35
(d) the conditions of the accreditation have been, and are being,
36
complied with;
37
Chapter 3
Accredited properties
Part 3
Renewal of accreditation
Section 85
98
Export Control Bill 2019
No. , 2019
(e) any other requirement prescribed by the rules is being, or has
1
been, met.
2
Note:
For the purposes of paragraph (b), a relevant Commonwealth liability
3
of a person is taken to have been paid in certain circumstances (see
4
section 431).
5
(3) If the Secretary renews the accreditation of the property, the
6
Secretary may, if the Secretary considers it appropriate, set an
7
expiry date for the accreditation.
8
Note 1:
If there is no expiry date for the accreditation of a property, the
9
accreditation remains in force unless it is revoked (see
10
subsection 82(1)).
11
Note 2:
A decision to set an expiry date for the renewed accreditation of a
12
property is a reviewable decision (see Part 2 of Chapter 11).
13
(4) The Secretary may set an expiry date for the accreditation of the
14
property under subsection (3) even if rules made for the purposes
15
of subsection 82(5) apply in relation the accreditation.
16
85 Conditions of renewed accreditation
17
If the Secretary renews the accreditation of a property, the
18
accreditation is subject to:
19
(a) the conditions provided by this Act; and
20
(b) the conditions prescribed by the rules (other than any of those
21
conditions that the Secretary decides are not to be conditions
22
of the accreditation); and
23
(c) any additional conditions that the Secretary considers
24
appropriate and that are specified in the notice given to the
25
applicant under section 86.
26
Note 1:
The manager of an accredited property may commit an offence or be
27
liable to a civil penalty if a condition of the accreditation is
28
contravened (see section 106).
29
Note 2:
The accreditation of a property may be suspended or revoked if a
30
condition of the accreditation is contravened (see sections 94 and
31
102).
32
Note 3:
A decision to renew the accreditation of a property subject to
33
additional conditions is a reviewable decision (see Part 2 of
34
Chapter 11).
35
Accredited properties
Chapter 3
Renewal of accreditation
Part 3
Section 86
No. , 2019
Export Control Bill 2019
99
Note 4:
Part 7 sets out additional obligations of the manager of an accredited
1
property.
2
86 Notice of decision
3
If the accreditation of a property is renewed, the Secretary must
4
give the applicant a written notice stating the information referred
5
to in section 81.
6
Chapter 3
Accredited properties
Part 4
Variation of accreditation
Division 1
Application by manager
Section 87
100
Export Control Bill 2019
No. , 2019
Part 4--Variation of accreditation
1
Division 1--Application by manager
2
87 Application by manager for variation of accreditation or
3
approval of alteration of property
4
(1) The manager of an accredited property may apply to the Secretary:
5
(a) to vary the accreditation in relation to any of the following
6
matters (including by adding or removing any of those
7
matters):
8
(i) kinds of export operations;
9
(ii) kinds of prescribed goods;
10
(iii) if applicable, places to which goods may be exported; or
11
(b) to approve a variation of the accreditation so that it covers:
12
(i) an alteration of the property, being an alteration of a
13
kind prescribed by the rules; or
14
(ii) the carrying out of export operations on an additional
15
part of the property, or on another property, in the
16
circumstances prescribed by the rules; or
17
(c) to vary the conditions of the accreditation; or
18
(d) to vary the particulars relating to the accreditation to make a
19
minor change to a matter (including to correct a minor or
20
technical error); or
21
(e) to vary any other aspect of the accreditation.
22
Example: For the purposes of paragraph (e), a variation may be needed to
23
change the name of a person who manages or controls, or will manage
24
or control, export operations covered by the accreditation.
25
Note:
Section 377 sets out requirements for applications. A single
26
application may be made to make or approve a variation in relation to
27
the accreditation of a property and to renew the accreditation of the
28
property.
29
(2) If the Secretary receives an application under subsection (1) to
30
make a variation or give an approval, the Secretary must decide:
31
(a) to make the variation or give the approval; or
32
Accredited properties
Chapter 3
Variation of accreditation
Part 4
Application by manager
Division 1
Section 88
No. , 2019
Export Control Bill 2019
101
(b) to refuse to make the variation or give the approval.
1
Note 1:
See section 379 for matters relating to dealing with applications.
2
Note 2:
If the Secretary does not make a decision in relation to the application
3
within the consideration period for the application, the Secretary is
4
taken to have refused the application at the end of that period (see
5
subsection 379(2)).
6
Note 3:
A decision to refuse the application is a reviewable decision (see
7
Part 2 of Chapter 11) and the Secretary must give the applicant written
8
notice of the decision (see section 382).
9
(3) The Secretary may make the variation, or give the approval, if the
10
Secretary is satisfied, having regard to any matter that the
11
Secretary considers relevant, that, if the variation were made or the
12
approval were given:
13
(a) the requirements prescribed by rules made for the purposes of
14
paragraph 79(2)(b) would continue to be met; and
15
(b) any other requirement prescribed by the rules would be met.
16
88 Notice of variation or approval of alteration
17
(1) If the Secretary makes a variation or gives an approval in relation
18
to the accreditation of a property under paragraph 87(2)(a), the
19
Secretary must give the manager of the property written notice of
20
the variation or approval.
21
(2) The notice must state the following:
22
(a) details of the variation or approval;
23
(b) if the variation is of the conditions of the accreditation--the
24
varied conditions;
25
(c) the date the variation or approval takes effect;
26
(d) any other information prescribed by the rules.
27
Note:
The accreditation, as varied, remains in force as provided by
28
section 82.
29
Chapter 3
Accredited properties
Part 4
Variation of accreditation
Division 1
Application by manager
Section 89
102
Export Control Bill 2019
No. , 2019
89 Certain variations must not be made unless approved
1
Prescribed alteration of property
2
(1) The manager of an accredited property must not make an alteration
3
of the property that is of a kind prescribed by rules made for the
4
purposes of subparagraph 87(1)(b)(i) unless:
5
(a) the alteration has been approved under subsection 87(2); and
6
(b) the Secretary has given the manager notice of the approval
7
under section 88.
8
Note:
The Secretary may suspend or revoke the accreditation of the property
9
if the manager contravenes this subsection (see paragraphs 94(1)(g)
10
and 102(1)(g)).
11
Carrying out export operations on additional part of property
12
(2) The manager of an accredited property must not carry out export
13
operations in relation to a kind of prescribed goods on an
14
additional part of the property, or on another property, in the
15
circumstances prescribed by rules made for the purposes of
16
subparagraph 87(1)(b)(ii) unless:
17
(a) the carrying out of those export operations on the additional
18
part of the property, or on the other property, has been
19
approved under subsection 87(2); and
20
(b) the Secretary has given the manager notice of the approval
21
under section 88.
22
Note:
The Secretary may suspend or revoke the accreditation of the property
23
if the manager contravenes this subsection (see paragraphs 94(1)(g)
24
and 102(1)(g)).
25
Accredited properties
Chapter 3
Variation of accreditation
Part 4
Variation by Secretary
Division 2
Section 90
No. , 2019
Export Control Bill 2019
103
Division 2--Variation by Secretary
1
90 Secretary may make variations in relation to accreditation
2
(1) The Secretary may do any of the following in relation to the
3
accreditation of a property:
4
(a) vary any aspect of the accreditation, including so that it does
5
not cover:
6
(i) a kind of export operations; or
7
(ii) a kind of prescribed goods; or
8
(iii) if applicable, a place to which goods may be exported;
9
(b) vary the conditions of the accreditation (including by
10
imposing new conditions);
11
(c) if there is no expiry date for the accreditation--vary the
12
accreditation by setting an expiry date for the accreditation;
13
(d) if there is an expiry date for the accreditation (whether under
14
paragraph 82(4)(a) or (b))--vary the accreditation by setting
15
a different expiry date for the accreditation;
16
(e) if there is an expiry date for the accreditation under
17
paragraph 82(4)(b)--vary the accreditation by revoking that
18
expiry date.
19
Note 1:
If the Secretary revokes the expiry date for the accreditation under
20
paragraph (e), the accreditation will remain in force:
21
(a) if rules made for the purposes of subsection 82(5) apply in
22
relation to the accreditation--for the period prescribed by the
23
rules; or
24
(b) if there are no such rules--indefinitely (unless it is revoked).
25
Note 2:
Certain decisions under subsection (1) are reviewable decisions (see
26
Part 2 of Chapter 11).
27
(2) The Secretary may make a variation in relation to the accreditation
28
of a property under paragraph (1)(a), (b) or (c), or set an earlier
29
expiry date for the accreditation under paragraph (1)(d), only if the
30
Secretary reasonably believes that:
31
(a) the requirements prescribed by rules made for the purposes of
32
paragraph 79(2)(b) are no longer being met; or
33
Chapter 3
Accredited properties
Part 4
Variation of accreditation
Division 2
Variation by Secretary
Section 91
104
Export Control Bill 2019
No. , 2019
(b) a condition of the accreditation has been, or is being,
1
contravened; or
2
(c) it is necessary to do so:
3
(i) to take account of an event notified under section 108;
4
or
5
(ii) to correct a minor or technical error; or
6
(d) the accreditation needs to be varied for any other reason
7
prescribed by the rules.
8
Notice of certain proposed variations
9
(3) The Secretary must not make a variation in relation to the
10
accreditation of a property under paragraph (1)(a), (b) or (c), or set
11
an earlier expiry date for the accreditation under paragraph (1)(d),
12
unless the Secretary has given a written notice to the manager of
13
the property in accordance with subsection (4).
14
(4) A notice under subsection (3) must:
15
(a) specify each proposed variation; and
16
(b) specify the grounds for each proposed variation; and
17
(c) subject to subsection (5), request the manager of the property
18
to give the Secretary, within 14 days after the day the notice
19
is given, a written statement showing cause why the proposed
20
variation should not be made; and
21
(d) include a statement setting out the manager's right to seek
22
review of a decision to make the proposed variation.
23
(5) A notice under subsection (3) is not required to include the request
24
referred to in paragraph (4)(c) if the Secretary reasonably believes
25
that the grounds for the proposed variation are serious and urgent.
26
91 Notice of variation
27
(1) If the Secretary makes a variation in relation to the accreditation of
28
a property under subsection 90(1), the Secretary must give the
29
manager of the property written notice of the variation.
30
(2) The notice must state the following:
31
(a) details of the variation;
32
Accredited properties
Chapter 3
Variation of accreditation
Part 4
Variation by Secretary
Division 2
Section 91
No. , 2019
Export Control Bill 2019
105
(b) if the variation is of the conditions of the accreditation--the
1
varied conditions and any new conditions;
2
(c) if the variation affects the period of effect of the
3
accreditation:
4
(i) the expiry date for the accreditation under
5
paragraph 82(4)(a) or (b) (whichever applies); or
6
(ii) if there is no expiry date for the accreditation--that the
7
accreditation remains in force unless it is revoked;
8
(d) the date the variation takes effect;
9
(e) any other information prescribed by the rules.
10
(3) If the manager was given a notice (a
show cause notice
) under
11
subsection 90(3) that included the request referred to in
12
paragraph 90(4)(c), the variation must not take effect before the
13
earlier of the following:
14
(a) the day after any response to the request is received by the
15
Secretary;
16
(b) the end of 14 days after the show cause notice was given.
17
Note:
The accreditation, as varied, remains in force as provided by
18
section 82.
19
Chapter 3
Accredited properties
Part 5
Suspension of accreditation
Division 1
Suspension requested by manager
Section 92
106
Export Control Bill 2019
No. , 2019
Part 5--Suspension of accreditation
1
Division 1--Suspension requested by manager
2
92 Manager may request suspension
3
(1) Subject to subsection (2), the manager of an accredited property
4
may request the Secretary to suspend the accreditation of the
5
property in relation to a kind of export operations and a kind of
6
prescribed goods and, if applicable, a place to which goods may be
7
exported.
8
(2) A request may be made under subsection (1) only in the
9
circumstances prescribed by the rules.
10
(3) A request under subsection (1) may relate to more than one kind of
11
export operations or more than one kind of prescribed goods and, if
12
applicable, more than one place.
13
(4) A request under subsection (1) must:
14
(a) be in writing; and
15
(b) state each kind of export operations and each kind of
16
prescribed goods and, if applicable, each place in relation to
17
which the accreditation is to be suspended; and
18
(c) specify the reason for the suspension; and
19
(d) include any other information prescribed by the rules.
20
(5) If the Secretary receives a request from the manager of an
21
accredited property under subsection (1), the Secretary must, by
22
written notice to the manager, suspend the accreditation as
23
requested, with effect on the day specified in the notice.
24
93 Request to revoke suspension
25
(1) If the accreditation of a property is suspended under section 92, the
26
manager of the property may request the Secretary to revoke the
27
suspension.
28
(2) A request under subsection (1) must:
29
Accredited properties
Chapter 3
Suspension of accreditation
Part 5
Suspension requested by manager
Division 1
Section 93
No. , 2019
Export Control Bill 2019
107
(a) be in writing; and
1
(b) state the reason for the request; and
2
(c) include any other information prescribed by the rules.
3
(3) If the Secretary receives a request from the manager of an
4
accredited property under subsection (1), the Secretary may:
5
(a) if the Secretary is satisfied that the reason for the suspension
6
no longer exists and there is no reason why the suspension
7
should not be revoked--revoke the suspension by written
8
notice to the manager; or
9
(b) in any other case:
10
(i) suspend the accreditation of the property under
11
Division 2 of this Part; or
12
(ii) revoke the accreditation of the property under
13
Division 2 of Part 6.
14
Note:
A decision to suspend or revoke the accreditation of the property is a
15
reviewable decision (see Part 2 of Chapter 11).
16
Chapter 3
Accredited properties
Part 5
Suspension of accreditation
Division 2
Suspension by Secretary
Section 94
108
Export Control Bill 2019
No. , 2019
Division 2--Suspension by Secretary
1
94 Grounds for suspension--general
2
(1) The Secretary may suspend the accreditation of a property in
3
relation to one or more kinds of export operations and one or more
4
kinds of prescribed goods and, if applicable, one or more places to
5
which goods may be exported if the Secretary reasonably believes
6
any of the following:
7
(a) the integrity of a kind of prescribed goods covered by the
8
accreditation cannot be ensured;
9
(b) a requirement prescribed by rules made for the purposes of
10
paragraph 79(2)(b) is no longer met;
11
(c) a condition of the accreditation has been, or is being,
12
contravened;
13
(d) the manager of the property:
14
(i) failed to comply with a direction given to the manager
15
by an authorised officer or the Secretary; or
16
(ii) failed to comply with a request by an authorised officer
17
to provide information or a document; or
18
(iii) failed to provide facilities and assistance to an auditor as
19
required by section 271; or
20
(iv) failed to comply with a request made by an auditor
21
under section 272;
22
(e) the manager of the property has engaged in conduct that:
23
(i) intimidated a person performing functions or exercising
24
powers under this Act; or
25
(ii) hindered or prevented a person from performing
26
functions or exercising powers under this Act;
27
(f) the manager of the property or any other person who
28
manages or controls export operations carried out at the
29
property:
30
(i) made a false, misleading or incomplete statement in an
31
application under this Chapter; or
32
(ii) gave false, misleading or incomplete information or
33
documents to the Secretary or to another person
34
Accredited properties
Chapter 3
Suspension of accreditation
Part 5
Suspension by Secretary
Division 2
Section 94
No. , 2019
Export Control Bill 2019
109
performing functions or exercising powers under this
1
Act; or
2
(iii) gave false, misleading or incomplete information or
3
documents to the Secretary or the Department under a
4
prescribed agriculture law;
5
(g) the manager of the property has contravened a requirement of
6
this Act in relation to the accreditation of the property;
7
(h) a ground prescribed by the rules exists.
8
Note 1:
A suspension must not be for more than 12 months (see section 97).
9
Note 2:
A decision to suspend the accreditation of a property under this
10
section is a reviewable decision (see Part 2 of Chapter 11).
11
Notice of proposed suspension
12
(2) The Secretary must not suspend the accreditation of a property
13
under subsection (1) unless the Secretary has given a written notice
14
to the manager of the property in accordance with subsection (3).
15
(3) A notice under subsection (2) must:
16
(a) specify each kind of export operations and each kind of
17
prescribed goods and, if applicable, each place in relation to
18
which the accreditation is proposed to be suspended; and
19
(b) specify the grounds for the proposed suspension; and
20
(c) subject to subsection (4), request the manager of the
21
accredited property to give the Secretary, within 14 days after
22
the day the notice is given, a written statement showing cause
23
why the accreditation should not be suspended as proposed;
24
and
25
(d) include a statement setting out the manager's right to seek
26
review of a decision to suspend the accreditation as proposed.
27
(4) A notice under subsection (2) is not required to include the request
28
referred to in paragraph (3)(c) if the Secretary reasonably believes
29
that the grounds for the suspension are serious and urgent.
30
Chapter 3
Accredited properties
Part 5
Suspension of accreditation
Division 2
Suspension by Secretary
Section 95
110
Export Control Bill 2019
No. , 2019
95 Grounds for suspension--overdue relevant Commonwealth
1
liability
2
Notice of proposed suspension
3
(1) The Secretary may suspend the accreditation of a property in
4
relation to all kinds of export operations and all kinds of prescribed
5
goods if:
6
(a) a relevant Commonwealth liability of the manager of the
7
property, or relating to the property, is more than 30 days
8
overdue; and
9
(b) the Secretary has given a written notice to the person (the
10
debtor
) who is liable to pay the relevant Commonwealth
11
liability in accordance with subsection (2); and
12
(c) within 8 days after the notice is given:
13
(i) the relevant Commonwealth liability has not been paid;
14
or
15
(ii) the debtor has not entered into an arrangement with the
16
Secretary to pay the relevant Commonwealth liability.
17
Note 1:
A suspension must not be for more than 12 months (see section 97).
18
Note 2:
A decision to suspend the accreditation of a property under this
19
section is a reviewable decision (see Part 2 of Chapter 11).
20
Note 3:
If the Secretary suspends the accreditation of a property under this
21
section, the Secretary may revoke the accreditation of the property in
22
certain circumstances (see section 103).
23
(2) A notice under subsection (1) must:
24
(a) state that a relevant Commonwealth liability of the debtor in
25
relation to an accredited property is more than 30 days
26
overdue; and
27
(b) state that the Secretary may suspend the accreditation of the
28
property for all kinds of export operations in relation to all
29
kinds of prescribed goods if, within 8 days after the notice is
30
given:
31
(i) the relevant Commonwealth liability is not paid; or
32
(ii) the debtor has not entered into an arrangement with the
33
Secretary to pay the relevant Commonwealth liability;
34
and
35
Accredited properties
Chapter 3
Suspension of accreditation
Part 5
Suspension by Secretary
Division 2
Section 96
No. , 2019
Export Control Bill 2019
111
(c) include a statement setting out the debtor's right to seek
1
review of a decision to suspend the accreditation of the
2
property.
3
Secretary may direct that activities not be carried out
4
(3) If the Secretary suspends the accreditation of a property under
5
subsection (1), the Secretary may refuse to carry out, or direct a
6
person not to carry out, specified activities or kinds of activities in
7
relation to the debtor under this Act until the relevant
8
Commonwealth liability has been paid.
9
Note:
See also section 309 (general provisions relating to directions).
10
Action under this section does not affect liability to pay relevant
11
Commonwealth liability
12
(4) Action by the Secretary under this section does not affect the
13
liability of the debtor to pay the relevant Commonwealth liability.
14
96 Notice of suspension
15
(1) If the Secretary decides to suspend the accreditation of a property
16
under this Division, the Secretary must give the manager of the
17
property a written notice stating the following:
18
(a) that the accreditation of the property is to be suspended, for
19
the period specified in the notice, in relation to all or
20
specified kinds of export operations and all or specified kinds
21
of prescribed goods and, if applicable, all or specified places
22
to which goods may be exported;
23
(b) the reasons for the suspension;
24
(c) the date the suspension is to start;
25
(d) the period of the suspension.
26
(2) If the manager was given a notice (a
show cause notice
) under
27
subsection 94(2) that included the request referred to in
28
paragraph 94(3)(c), the suspension must not start before the earlier
29
of the following:
30
(a) the day after any response to the request is received by the
31
Secretary;
32
Chapter 3
Accredited properties
Part 5
Suspension of accreditation
Division 2
Suspension by Secretary
Section 97
112
Export Control Bill 2019
No. , 2019
(b) the end of 14 days after the show cause notice was given.
1
97 Period of suspension
2
(1) A suspension of the accreditation of a property under this Division
3
must not be for more than 12 months.
4
(2) The Secretary may vary the period of a suspension under this
5
Division by written notice to the manager of the property.
6
However, the total period of the suspension must not be more than
7
12 months.
8
Note:
A decision to extend the period of a suspension is a reviewable
9
decision (see Part 2 of Chapter 11).
10
98 Revocation of suspension
11
The Secretary may revoke a suspension of the accreditation of a
12
property under this Division by written notice to the manager of
13
the property.
14
Accredited properties
Chapter 3
Suspension of accreditation
Part 5
Other provisions
Division 3
Section 99
No. , 2019
Export Control Bill 2019
113
Division 3--Other provisions
1
99 Effect of suspension
2
(1) If the accreditation of a property is suspended wholly or in part
3
under Division 1 or 2 or under rules made for the purposes of
4
subsection 109(3):
5
(a) the accreditation of the property remains in force while it is
6
suspended; and
7
(b) subject to rules made for the purposes of subsection (2), the
8
requirements of this Act in relation to the accreditation
9
(including the conditions of the accreditation) must be
10
complied with while the accreditation is suspended.
11
(2) The rules may prescribe requirements of this Act (including
12
conditions of the accreditation of a property) that are not required
13
to be complied with during any period when the accreditation is
14
suspended.
15
100 Export operations must not be carried out while accreditation
16
suspended
17
(1) The manager of an accredited property contravenes this subsection
18
if:
19
(a) the manager was given a notice of suspension in relation to
20
the accreditation of the property under subsection 92(5) or
21
96(1); and
22
(b) export operations in relation to which the accreditation was
23
suspended were carried out at the property while the
24
accreditation was suspended.
25
Note:
The physical elements of an offence against subsection (2) are set out
26
in this subsection (see section 370).
27
Fault-based offence
28
(2) The manager of an accredited property commits an offence if the
29
manager contravenes subsection (1).
30
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
31
Chapter 3
Accredited properties
Part 5
Suspension of accreditation
Division 3
Other provisions
Section 100
114
Export Control Bill 2019
No. , 2019
Civil penalty provision
1
(3) The manager of an accredited property is liable to a civil penalty if
2
the manager contravenes subsection (1).
3
Civil penalty:
240 penalty units.
4
Accredited properties
Chapter 3
Revocation of accreditation
Part 6
Revocation requested by manager
Division 1
Section 101
No. , 2019
Export Control Bill 2019
115
Part 6--Revocation of accreditation
1
Division 1--Revocation requested by manager
2
101 Manager may request revocation
3
(1) The manager of an accredited property (including a property in
4
relation to which a suspension is in effect under Part 5) may
5
request the Secretary to revoke the accreditation of the property.
6
Note:
If the manager does not wish to revoke the accreditation of the
7
property in relation to all kinds of export operations and all kinds of
8
prescribed goods, the manager may apply to vary the accreditation
9
under Division 1 of Part 4.
10
(2) A request under subsection (1) must:
11
(a) be in writing; and
12
(b) include the information (if any) prescribed by the rules.
13
(3) If the Secretary receives a request from the manager of an
14
accredited property under subsection (1), the Secretary must, by
15
written notice to the manager, revoke the accreditation of the
16
property, with effect on the day specified in the notice.
17
(4) Subsection (3) does not apply if, before the request under
18
subsection (1) was made, the Secretary:
19
(a) had given the manager of the property a notice under
20
subsection 102(2) in relation to the accreditation; and
21
(b) had not decided whether to revoke the accreditation or not.
22
Chapter 3
Accredited properties
Part 6
Revocation of accreditation
Division 2
Revocation by Secretary
Section 102
116
Export Control Bill 2019
No. , 2019
Division 2--Revocation by Secretary
1
102 Grounds for revocation--general
2
(1) The Secretary may revoke the accreditation of a property
3
(including a property in relation to which a suspension is in effect
4
under Part 5) if the Secretary reasonably believes any of the
5
following:
6
(a) the integrity of a kind of prescribed goods covered by the
7
accreditation cannot be ensured;
8
(b) a requirement prescribed by rules made for the purposes of
9
paragraph 79(2)(b) is no longer met;
10
(c) a condition of the accreditation has been, or is being,
11
contravened;
12
(d) the manager of the property:
13
(i) failed to comply with a direction given to the manager
14
by an authorised officer or the Secretary; or
15
(ii) failed to comply with a request by an authorised officer
16
to provide information or a document; or
17
(iii) failed to provide facilities and assistance to an auditor as
18
required by section 271; or
19
(iv) failed to comply with a request made by an auditor
20
under section 272;
21
(e) the manager of the property has engaged in conduct that:
22
(i) intimidated a person performing functions or exercising
23
powers under this Act; or
24
(ii) hindered or prevented a person from performing
25
functions or exercising powers under this Act;
26
(f) the manager of the property or any other person who
27
manages or controls export operations carried out at the
28
property:
29
(i) made a false, misleading or incomplete statement in an
30
application under this Chapter; or
31
(ii) gave false, misleading or incomplete information or
32
documents to the Secretary or to another person
33
Accredited properties
Chapter 3
Revocation of accreditation
Part 6
Revocation by Secretary
Division 2
Section 103
No. , 2019
Export Control Bill 2019
117
performing functions or exercising powers under this
1
Act; or
2
(iii) gave false, misleading or incomplete information or
3
documents to the Secretary or the Department under a
4
prescribed agriculture law;
5
(g) the manager of the property has contravened a requirement of
6
this Act in relation to the accreditation of the property;
7
(h) a ground prescribed by the rules exists.
8
Note:
A decision to revoke the accreditation of a property is a reviewable
9
decision (see Part 2 of Chapter 11).
10
Notice of proposed revocation
11
(2) The Secretary must not revoke the accreditation of a property
12
under subsection (1) unless the Secretary has given a written notice
13
to the manager of the property in accordance with subsection (3).
14
(3) A notice under subsection (2) must:
15
(a) specify the grounds for the proposed revocation; and
16
(b) subject to subsection (4), request the manager of the
17
accredited property to give the Secretary, within 14 days after
18
the day the notice is given, a written statement showing cause
19
why the accreditation should not be revoked; and
20
(c) include a statement setting out the manager's right to seek
21
review of a decision to revoke the accreditation.
22
(4) A notice under subsection (2) is not required to include the request
23
referred to in paragraph (3)(b) if the Secretary reasonably believes
24
that the grounds for the revocation are serious and urgent.
25
103 Grounds for revocation--overdue relevant Commonwealth
26
liability
27
(1) The Secretary may revoke the accreditation of a property if:
28
(a) the accreditation is suspended under subsection 95(1) for
29
non-payment of a relevant Commonwealth liability; and
30
(b) within 90 days after the start of the suspension:
31
(i) the relevant Commonwealth liability had not been paid;
32
or
33
Chapter 3
Accredited properties
Part 6
Revocation of accreditation
Division 2
Revocation by Secretary
Section 104
118
Export Control Bill 2019
No. , 2019
(ii) the person (the
debtor
) who is liable to pay the relevant
1
Commonwealth liability had not entered into an
2
arrangement with the Secretary to pay the relevant
3
Commonwealth liability.
4
Note:
A decision to revoke the accreditation of a property under this section
5
is a reviewable decision (see Part 2 of Chapter 11).
6
Secretary may direct that activities not be carried out
7
(2) If the Secretary revokes the accreditation of a property under
8
subsection (1), the Secretary may refuse to carry out, or direct a
9
person not to carry out, specified activities or kinds of activities in
10
relation to the debtor under this Act until the relevant
11
Commonwealth liability has been paid.
12
Note:
See also section 309 (general provisions relating to directions).
13
Action under this section does not affect liability to pay relevant
14
Commonwealth liability
15
(3) Action by the Secretary under this section does not affect the
16
liability of the debtor to pay the relevant Commonwealth liability.
17
104 Notice of revocation
18
(1) If the Secretary decides to revoke the accreditation of a property
19
under this Division, the Secretary must give the manager of the
20
property a written notice stating the following:
21
(a) that the accreditation of the property is to be revoked;
22
(b) the reasons for the revocation;
23
(c) the date the revocation is to take effect.
24
Note:
The notice must also state the matters referred to in section 382.
25
(2) If the manager was given a notice (a
show cause notice
) under
26
subsection 102(2) that included the request referred to in
27
paragraph 102(3)(b), the revocation must not take effect before the
28
earlier of the following:
29
(a) the day after any response to the request is received by the
30
Secretary;
31
(b) the end of 14 days after the show cause notice was given.
32
Accredited properties
Chapter 3
Revocation of accreditation
Part 6
Other provisions
Division 3
Section 105
No. , 2019
Export Control Bill 2019
119
Division 3--Other provisions
1
105 Secretary may require action to be taken after accreditation
2
revoked
3
(1) This section applies if:
4
(a) a person was given notice of revocation of the accreditation
5
of a property under subsection 101(3) or 104(1); or
6
(b) the accreditation of the property was revoked under
7
Division 1 or 2.
8
(2) The Secretary may, in writing, direct the person to take specified
9
action, within a specified period after the accreditation is revoked,
10
in relation to the export operations and goods that were covered by
11
the accreditation. The action must be action that is necessary for
12
the purpose of achieving one or more objects of this Act.
13
(3) A direction to a person under subsection (2) must state that, if the
14
person fails to comply with the direction, the person could commit
15
an offence or be liable to a civil penalty.
16
Note:
See also section 309 (general provisions relating to directions).
17
(4) A person who is given a direction under subsection (2) must
18
comply with the direction.
19
Fault-based offence
20
(5) A person commits an offence if:
21
(a) the person is given a direction under subsection (2); and
22
(b) the person engages in conduct; and
23
(c) the conduct contravenes the direction.
24
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
25
Civil penalty provision
26
(6) A person is liable to a civil penalty if the person contravenes
27
subsection (4).
28
Chapter 3
Accredited properties
Part 6
Revocation of accreditation
Division 3
Other provisions
Section 105
120
Export Control Bill 2019
No. , 2019
Civil penalty:
240 penalty units.
1
Accredited properties
Chapter 3
Obligations of managers of accredited properties etc.
Part 7
Section 106
No. , 2019
Export Control Bill 2019
121
Part 7--Obligations of managers of accredited
1
properties etc.
2
3
106 Conditions of accreditation must not be contravened
4
Accreditation that is not suspended
5
(1) A person contravenes this subsection if:
6
(a) the person is the manager of an accredited property; and
7
(b) the accreditation of the property is not suspended wholly or
8
in part under Part 5; and
9
(c) the accreditation covers a kind of prescribed goods (the
10
relevant goods
) that may be exported:
11
(i) generally; or
12
(ii) to one or more places; and
13
(d) the relevant goods are:
14
(i) in the case of an accreditation referred to in
15
subparagraph (c)(i)--exported to any place; or
16
(ii) in the case of an accreditation referred to in
17
subparagraph (c)(ii)--exported to a place covered by the
18
accreditation; and
19
(e) a condition of the accreditation relating to the relevant goods,
20
or to export operations carried out in relation to the relevant
21
goods, is contravened.
22
Note:
The physical elements of an offence against subsection (2) are set out
23
in this subsection (see section 370).
24
Fault-based offence
25
(2) A person commits an offence if the person contravenes
26
subsection (1).
27
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
28
Chapter 3
Accredited properties
Part 7
Obligations of managers of accredited properties etc.
Section 106
122
Export Control Bill 2019
No. , 2019
Civil penalty provision
1
(3) A person is liable to a civil penalty if the person contravenes
2
subsection (1).
3
Civil penalty:
240 penalty units.
4
Accreditation that is suspended
5
(4) A person contravenes this subsection if:
6
(a) the person is the manager of an accredited property; and
7
(b) the accreditation of the property is suspended wholly or in
8
part under Part 5; and
9
(c) the accreditation covers a kind of prescribed goods (the
10
relevant goods
) that may be exported:
11
(i) generally; or
12
(ii) to one or more places; and
13
(d) the relevant goods are:
14
(i) in the case of an accreditation referred to in
15
subparagraph (c)(i)--exported to any place; or
16
(ii) in the case of an accreditation referred to in
17
subparagraph (c)(ii)--exported to a place covered by the
18
accreditation; and
19
(e) a condition of the accreditation relating to the relevant goods,
20
or to export operations carried out in relation to the relevant
21
goods, is contravened; and
22
(f) the condition is required to be complied with during the
23
period of the suspension.
24
Note:
The physical elements of an offence against subsection (5) are set out
25
in this subsection (see section 370).
26
Fault-based offence
27
(5) A person commits an offence if the person contravenes
28
subsection (4).
29
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
30
Accredited properties
Chapter 3
Obligations of managers of accredited properties etc.
Part 7
Section 107
No. , 2019
Export Control Bill 2019
123
Civil penalty provision
1
(6) A person is liable to a civil penalty if the person contravenes
2
subsection (4).
3
Civil penalty:
240 penalty units.
4
107 Additional or corrected information in relation to application
5
for accreditation etc.
6
(1) The manager of an accredited property must comply with
7
subsection (2) if:
8
(a) the manager becomes aware that information included in an
9
application made by the manager under this Chapter, or
10
information or a document given to the Secretary in relation
11
to such an application, was incomplete or incorrect; or
12
(b) a change prescribed by the rules occurs.
13
(2) The manager of the property must, as soon as practicable, give the
14
Secretary additional or corrected information, to the extent that it is
15
relevant to assessing whether:
16
(a) the requirements of this Act in relation to a matter covered by
17
the accreditation of the property have been, are being, or will
18
be complied with; or
19
(b) importing country requirements relating to a matter covered
20
by the accreditation of the property have been, are being, or
21
will be met.
22
Note 1:
A person may commit an offence or be liable to a civil penalty if the
23
person makes a false or misleading statement in an application or
24
provides false or misleading information or documents (see
25
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
26
sections 367, 368 and 369 of this Act).
27
Note 2:
The Secretary may suspend or revoke the accreditation of the property
28
if the manager fails to comply with this subsection (see paragraphs
29
94(1)(g) and 102(1)(g)).
30
Note 3:
This section is not subject to the privilege against self-incrimination
31
(see section 426).
32
Chapter 3
Accredited properties
Part 7
Obligations of managers of accredited properties etc.
Section 108
124
Export Control Bill 2019
No. , 2019
Civil penalty provision
1
(3) A person is liable to a civil penalty if:
2
(a) the person is required to give information to the Secretary
3
under subsection (2); and
4
(b) the person fails to comply with the requirement.
5
Civil penalty:
60 penalty units.
6
108 Notice of event or change in circumstances
7
(1) The manager of an accredited property must notify the Secretary,
8
in writing, as soon as practicable after an event or circumstance
9
prescribed by the rules occurs.
10
Civil penalty provision
11
(2) A person is liable to a civil penalty if:
12
(a) the person is required to notify the Secretary of an event or
13
circumstance in accordance with subsection (1); and
14
(b) the person fails to comply with the requirement.
15
Civil penalty:
60 penalty units.
16
109 Notice of person ceasing to be manager of accredited property
17
Notice by former manager
18
(1) If the manager (the
former manager
) of an accredited property
19
ceases to be the manager of the property, the former manager (or
20
another person who is legally authorised to act on behalf of the
21
former manager) must, as soon as practicable after the cessation,
22
notify the Secretary, in writing, of that fact. The notice must also
23
include contact details for the person giving the notice.
24
Note:
If the manager of an accredited property ceases to be the manager of
25
the property, the accreditation of the property may be taken to have
26
been suspended under rules made for the purposes of subsection (3).
27
Civil penalty provision
28
(2) A person is liable to a civil penalty if:
29
Accredited properties
Chapter 3
Obligations of managers of accredited properties etc.
Part 7
Section 109
No. , 2019
Export Control Bill 2019
125
(a) the person is required to notify the Secretary under
1
subsection (1); and
2
(b) the person fails to comply with the requirement.
3
Civil penalty:
60 penalty units.
4
Rules may make provision in relation to accredited property that
5
no longer has a manager or in relation to which manager has
6
changed
7
(3) The rules may make provision for and in relation to the
8
accreditation of a property that no longer has a manager or in
9
relation to which there has been a change of manager.
10
(4) Without limiting subsection (3), the rules may do any of the
11
following:
12
(a) provide that the accreditation of a property referred to in
13
subsection (3) is suspended or revoked;
14
(b) prescribe requirements that must be complied with by any
15
new manager of the property;
16
(c) make provision in relation to any other matters relating to the
17
accreditation or any new manager.
18
Chapter 4
Registered establishments
Part 1
Introduction
Section 110
126
Export Control Bill 2019
No. , 2019
Chapter 4--Registered establishments
1
Part 1--Introduction
2
3
110 Simplified outline of this Chapter
4
The Secretary may, on application by the occupier of an
5
establishment, register the establishment for a kind of export
6
operations in relation to a kind of prescribed goods.
7
An establishment may be registered for more than one kind of
8
export operations in relation to more than one kind of prescribed
9
goods for export to one or more places.
10
The registration of an establishment is subject to certain conditions.
11
The registration of an establishment may remain in force
12
indefinitely or may cease to be in force on an expiry date.
13
If there is an expiry date for the registration of an establishment,
14
the registration may be renewed.
15
The matters covered by the registration of an establishment or the
16
conditions of the registration may be varied.
17
The registration of an establishment may be suspended wholly or
18
in part, and may be revoked.
19
A show cause notice must be given to the occupier of a registered
20
establishment before the registration may be varied, suspended or
21
revoked (except in serious and urgent cases or if the occupier has
22
requested the variation, suspension or revocation).
23
The Secretary may direct the occupier of a registered establishment
24
to cease carrying out a kind of export operations in relation to a
25
kind of prescribed goods in certain circumstances.
26
Registered establishments
Chapter 4
Introduction
Part 1
Section 110
No. , 2019
Export Control Bill 2019
127
The occupier of a registered establishment must comply with
1
certain obligations.
2
The Secretary must keep a register of information about registered
3
establishments.
4
Chapter 4
Registered establishments
Part 2
Application for registration
Section 111
128
Export Control Bill 2019
No. , 2019
Part 2--Application for registration
1
2
111 Application for registration of establishment
3
(1) The occupier of an establishment (other than a registered
4
establishment) may apply to the Secretary to register the
5
establishment for a kind of export operations in relation to a kind
6
of prescribed goods.
7
(2) An application:
8
(a) may relate to more than one kind of export operations and
9
more than one kind of prescribed goods; and
10
(b) may, but is not required to, specify one or more places to
11
which the goods are to be exported.
12
Note 1:
The export of a kind of prescribed goods may be prohibited unless
13
export operations in relation to the goods have been carried out at a
14
registered establishment (see section 29 and rules made for the
15
purposes of that section).
16
Note 2:
Section 377 sets out requirements for applications.
17
112 Secretary must decide whether to register establishment
18
(1) On receiving an application under section 111 to register an
19
establishment, the Secretary must decide:
20
(a) to register the establishment; or
21
(b) to refuse to register the establishment.
22
Note 1:
See section 379 for matters relating to dealing with applications.
23
Note 2:
If the application is to register the establishment for more than one
24
kind of export operations in relation to more than one kind of
25
prescribed goods for export to more than one place, the Secretary may
26
decide to register the establishment for some or all of those kinds of
27
export operations in relation to some or all of those kinds of goods for
28
export to some or all of those places.
29
Note 3:
If the Secretary does not make a decision in relation to the application
30
within the consideration period for the application, the Secretary is
31
taken to have refused the application at the end of that period (see
32
subsection 379(2)).
33
Registered establishments
Chapter 4
Application for registration
Part 2
Section 112
No. , 2019
Export Control Bill 2019
129
Note 4:
A decision to refuse to register an establishment for a kind of export
1
operations in relation to a kind of prescribed goods is a reviewable
2
decision (see Part 2 of Chapter 11) and the Secretary must give the
3
applicant written notice of the decision (see section 382).
4
(2) The Secretary may register the establishment for a kind of export
5
operations in relation to a kind of prescribed goods and, if
6
applicable, a specified place to which the goods may be exported if
7
the Secretary is satisfied, having regard to any matter that the
8
Secretary considers relevant, that the following requirements are
9
met:
10
(a) the occupier of the establishment is a fit and proper person
11
(having regard to the matters referred to in section 372);
12
(b) either:
13
(i) all relevant Commonwealth liabilities of the occupier of
14
the establishment, or relating to the establishment, have
15
been paid or are taken to have been paid; or
16
(ii) if one or more relevant Commonwealth liabilities of the
17
occupier, or relating to the establishment, have not been
18
paid or are not taken to have been paid--the
19
non-payment is due to exceptional circumstances;
20
(c) the construction of the establishment and its equipment and
21
facilities are suitable for carrying out export operations of
22
that kind in relation to goods of that kind (having regard to
23
the matters prescribed by the rules);
24
(d) if the rules require export operations of that kind to be carried
25
out in relation to goods of that kind in accordance with an
26
approved arrangement--an approved arrangement covering
27
that kind of export operations and that kind of goods is in
28
force;
29
(e) if export operations, or other operations, are to be carried out
30
in relation to different kinds of goods at the establishment--
31
the operations:
32
(i) are compatible with each other; and
33
(ii) will not have a detrimental effect on export operations
34
to be carried out in relation to a kind of prescribed
35
goods at the establishment;
36
(f) any other requirement prescribed by the rules.
37
Chapter 4
Registered establishments
Part 2
Application for registration
Section 113
130
Export Control Bill 2019
No. , 2019
Note:
For the purposes of paragraph (b), a relevant Commonwealth liability
1
of a person is taken to have been paid in certain circumstances (see
2
section 431).
3
(3) If the Secretary registers the establishment, the Secretary may, if
4
the Secretary considers it appropriate, set an expiry date for the
5
registration.
6
Note 1:
If there is no expiry date for the registration of an establishment, the
7
registration remains in force unless it is revoked (see
8
subsection 115(1)).
9
Note 2:
A decision to set an expiry date for the registration of an establishment
10
is a reviewable decision (see Part 2 of Chapter 11).
11
(4) The Secretary may set an expiry date for the registration of an
12
establishment under subsection (3) even if rules made for the
13
purposes of subsection 115(5) apply in relation to the registration.
14
113 Conditions of registration
15
(1) The registration of an establishment is subject to:
16
(a) the conditions provided by this Act; and
17
(b) the conditions prescribed by the rules (other than any of those
18
conditions that the Secretary decides are not to be conditions
19
of the registration); and
20
(c) any additional conditions that the Secretary considers
21
appropriate and that are specified in the notice given to the
22
applicant with the certificate of registration.
23
Note 1:
The occupier of a registered establishment may commit an offence or
24
be liable to a civil penalty if a condition of the registration is
25
contravened (see section 144).
26
Note 2:
The registration of an establishment may be suspended or revoked if a
27
condition of the registration is contravened (see sections 127 and 138).
28
Note 3:
A decision to register an establishment subject to additional conditions
29
is a reviewable decision (see Part 2 of Chapter 11).
30
Note 4:
Part 7 sets out additional obligations of the occupier of a registered
31
establishment.
32
(2) Without limiting paragraph (1)(b), the rules may prescribe
33
conditions in relation to any or all of the following:
34
(a) the occupier of an establishment;
35
Registered establishments
Chapter 4
Application for registration
Part 2
Section 114
No. , 2019
Export Control Bill 2019
131
(b) the kind of establishment;
1
(c) a kind of export operations;
2
(d) a kind of prescribed goods;
3
(e) importing country requirements relating to a kind of export
4
operations or a kind of prescribed goods.
5
(3) For the purposes of this Act, conditions to which the registration of
6
an establishment is subject under subsection (1) or section 118 are
7
conditions of the registration.
8
114 Notice of decision and certificate of registration
9
If the Secretary registers an establishment, the Secretary must give
10
the applicant:
11
(a) a certificate of registration stating the following information:
12
(i) the registration number allocated to the establishment;
13
(ii) each kind of export operations and each kind of
14
prescribed goods covered by the registration;
15
(iii) if applicable, each place where a kind of prescribed
16
goods covered by the registration may be exported;
17
(iv) the date the registration takes effect;
18
(v) that the registration remains in force indefinitely or the
19
expiry date for the registration;
20
(vi) any other information prescribed by the rules; and
21
(b) a written notice stating the following:
22
(i) any conditions prescribed by the rules that the Secretary
23
has decided are not to be conditions of the registration;
24
(ii) any additional conditions of the registration;
25
(iii) any other information prescribed by the rules.
26
115 Period of effect of registration
27
Registrations that have no expiry date
28
(1) If there is no expiry date for the registration of an establishment,
29
the registration remains in force unless:
30
(a) it is revoked under Part 6; or
31
Chapter 4
Registered establishments
Part 2
Application for registration
Section 115
132
Export Control Bill 2019
No. , 2019
(b) it is taken to have been revoked under section 147.
1
Registrations that have an expiry date
2
(2) If there is an expiry date for the registration of an establishment
3
(including registration that has been renewed under Part 3), the
4
registration remains in force until the end of that expiry date
5
unless:
6
(a) the registration is renewed under Part 3 on or before that
7
date; or
8
(b) the registration is revoked under Part 6, or is taken to have
9
been revoked under section 147, on or before that date.
10
(3) There is an expiry date for the registration of an establishment if:
11
(a) rules made for the purposes of subsection (5) apply in
12
relation to the registration; or
13
(b) an expiry date for the registration set under subsection 112(3)
14
or 117(3) or paragraph 123(1)(c) or (d) is in force in relation
15
to the registration.
16
(4) The
expiry date
for the registration of an establishment is:
17
(a) if rules made for the purposes of subsection (5) apply in
18
relation to the registration and no expiry date set under
19
subsection 112(3) or 117(3) or paragraph 123(1)(c) or (d) is
20
in force in relation to the registration--the last day of the
21
period prescribed by the rules; or
22
(b) if an expiry date for the registration set under
23
subsection 112(3) or 117(3) or paragraph 123(1)(c) or (d) is
24
in force in relation to the registration--that date.
25
Rules may prescribe period of effect of registration
26
(5) The rules may prescribe the period during which the registration of
27
an establishment remains in force. The rules may apply in relation
28
to:
29
(a) registration of establishments generally; or
30
(b) registrations of establishments for a kind of export operations
31
in relation to a kind of prescribed goods and, if applicable, a
32
place to which the goods may be exported.
33
Registered establishments
Chapter 4
Renewal of registration
Part 3
Section 116
No. , 2019
Export Control Bill 2019
133
Part 3--Renewal of registration
1
2
116 Application to renew registration of establishment
3
(1) This section applies in relation to a registered establishment
4
(including an establishment in relation to which a suspension is in
5
effect under Part 5) if there is an expiry date for the registration.
6
Note:
See subsections 115(3) and (4) in relation to the expiry date for the
7
registration of an establishment.
8
(2) The occupier of the establishment may apply to the Secretary to
9
renew the registration of the establishment.
10
Note:
Section 377 sets out requirements for applications.
11
(3) An application for renewal:
12
(a) may relate to more than one kind of export operations and
13
more than one kind of prescribed goods; and
14
(b) may, but is not required to, specify one or more places to
15
which the goods are to be exported.
16
(4) An application for renewal must be made:
17
(a) within the period prescribed by the rules; or
18
(b) if the Secretary allows a longer period--within that longer
19
period.
20
(5) If an application to renew the registration of an establishment is
21
made after the period applying under subsection (4):
22
(a) the application is taken to be an application to register the
23
establishment; and
24
(b) Part 2 applies in relation to the application; and
25
(c) the other provisions of this Part do not apply in relation to the
26
application.
27
117 Secretary must decide whether to renew registration
28
(1) On receiving an application under section 116 to renew the
29
registration of an establishment, the Secretary must decide:
30
Chapter 4
Registered establishments
Part 3
Renewal of registration
Section 117
134
Export Control Bill 2019
No. , 2019
(a) to renew the registration; or
1
(b) to refuse to renew the registration.
2
Note 1:
See section 379 for matters relating to dealing with applications.
3
Note 2:
If the application is to renew the registration of the establishment for
4
more than one kind of export operations in relation to more than one
5
kind of prescribed goods for export to more than one place, the
6
Secretary may decide to renew the registration for some or all of those
7
kinds of export operations in relation to some or all of those kinds of
8
goods for export to some or all of those places.
9
Note 3:
If the Secretary does not make a decision in relation to the application
10
within the consideration period for the application, the Secretary is
11
taken to have refused the application at the end of that period (see
12
subsection 379(2)).
13
Note 4:
A decision to refuse to renew the registration of an establishment for a
14
kind of export operations in relation to a kind of prescribed goods is a
15
reviewable decision (see Part 2 of Chapter 11) and the Secretary must
16
give the applicant written notice of the decision (see section 382).
17
(2) The Secretary may refuse to renew the registration of the
18
establishment for a kind of export operations in relation to a kind
19
of prescribed goods and, if applicable, a specified place to which
20
the goods may be exported if the Secretary is not satisfied, having
21
regard to any matter that the Secretary considers relevant, of one or
22
more of the following:
23
(a) the occupier of the establishment is a fit and proper person
24
(having regard to the matters referred to in section 372);
25
(b) either:
26
(i) all relevant Commonwealth liabilities of the occupier of
27
the establishment, or relating to the establishment, have
28
been paid or are taken to have been paid; or
29
(ii) if one or more relevant Commonwealth liabilities of the
30
occupier, or relating to the establishment, have not been
31
paid or are not taken to have been paid--the
32
non-payment is due to exceptional circumstances;
33
(c) the occupier of the establishment has complied with the
34
requirements of this Act in relation to the export operations
35
and prescribed goods covered by the registration (whether at
36
the establishment or not);
37
Registered establishments
Chapter 4
Renewal of registration
Part 3
Section 118
No. , 2019
Export Control Bill 2019
135
(d) the conditions of the registration have been, and are being,
1
complied with;
2
(e) the construction of the establishment and its equipment and
3
facilities are suitable for carrying out export operations of
4
that kind in relation to goods of that kind (having regard to
5
the matters prescribed by the rules);
6
(f) if the rules require export operations of that kind to be carried
7
in relation to goods of that kind in accordance with an
8
approved arrangement--an approved arrangement covering
9
that kind of export operations and that kind of goods is in
10
force;
11
(g) any other requirement prescribed by the rules is met.
12
Note:
For the purposes of paragraph (b), a relevant Commonwealth liability
13
of a person is taken to have been paid in certain circumstances (see
14
section 431).
15
(3) If the Secretary renews the registration of the establishment, the
16
Secretary may, if the Secretary considers it appropriate, set an
17
expiry date for the registration.
18
Note 1:
If there is no expiry date for the registration of an establishment, the
19
registration remains in force unless it is revoked (see
20
subsection 115(1)).
21
Note 2:
A decision to set an expiry date for the renewed registration of an
22
establishment is a reviewable decision (see Part 2 of Chapter 11).
23
(4) The Secretary may set an expiry date for the registration of an
24
establishment under subsection (3) even if rules made for the
25
purposes of subsection 115(5) apply in relation the registration.
26
118 Conditions of renewed registration
27
If the Secretary renews the registration of an establishment, the
28
registration is subject to:
29
(a) the conditions provided by this Act; and
30
(b) the conditions prescribed by rules made for the purposes of
31
paragraph 113(1)(b) (other than any of those conditions that
32
the Secretary decides are not to be conditions of the
33
registration); and
34
Chapter 4
Registered establishments
Part 3
Renewal of registration
Section 119
136
Export Control Bill 2019
No. , 2019
(c) any additional conditions that the Secretary considers
1
appropriate and that are specified in the notice given under
2
section 119.
3
Note 1:
The occupier of a registered establishment may commit an offence or
4
be liable to a civil penalty if a condition of the registration is
5
contravened (see section 144).
6
Note 2:
The registration of an establishment may be suspended or revoked if a
7
condition of the registration is contravened (see sections 127 and 138).
8
Note 3:
A decision to renew the registration of an establishment subject to
9
additional conditions is a reviewable decision (see Part 2 of
10
Chapter 11).
11
Note 4:
Part 7 sets out additional obligations of the occupier of a registered
12
establishment.
13
119 Notice of decision and certificate of registration
14
If the registration of an establishment is renewed, the Secretary
15
must give the applicant:
16
(a) a certificate of registration stating the information referred to
17
in paragraph 114(a); and
18
(b) a written notice stating the information referred to in
19
paragraph 114(b).
20
Registered establishments
Chapter 4
Variation of registration
Part 4
Application by occupier
Division 1
Section 120
No. , 2019
Export Control Bill 2019
137
Part 4--Variation of registration
1
Division 1--Application by occupier
2
120 Application by occupier for variation of registration or approval
3
of alteration of establishment
4
(1) The occupier of a registered establishment may apply to the
5
Secretary:
6
(a) to vary the registration in relation to any of the following
7
matters (including by adding or removing any of those
8
matters):
9
(i) kinds of export operations;
10
(ii) kinds of prescribed goods;
11
(iii) if applicable, places to which goods may be exported; or
12
(b) to approve an alteration of the establishment (including an
13
addition to the establishment); or
14
(c) to vary the conditions of the registration; or
15
(d) to vary the particulars relating to the registration to make a
16
minor change to a matter (including to correct a minor or
17
technical error); or
18
(e) to vary any other aspect of the registration.
19
Example: For the purposes of paragraph (e), a variation may be needed to
20
change the name of a person who manages or controls, or will manage
21
or control, export operations covered by the registration.
22
Note:
Section 377 sets out requirements for applications. A single
23
application may be made to make or approve a variation in relation to
24
the registration of an establishment and to renew the registration of the
25
establishment.
26
(2) If the Secretary receives an application under subsection (1) to
27
make a variation or approve an alteration, the Secretary must
28
decide:
29
(a) to make the variation or approve the alteration; or
30
(b) to refuse to make the variation or approve the alteration.
31
Note 1:
See section 379 for matters relating to dealing with applications.
32
Chapter 4
Registered establishments
Part 4
Variation of registration
Division 1
Application by occupier
Section 121
138
Export Control Bill 2019
No. , 2019
Note 2:
If the Secretary does not make a decision in relation to the application
1
within the consideration period for the application, the Secretary is
2
taken to have refused the application at the end of that period (see
3
subsection 379(2)).
4
Note 3:
A decision to refuse the application is a reviewable decision (see
5
Part 2 of Chapter 11) and the Secretary must give the applicant written
6
notice of the decision (see section 382).
7
(3) The Secretary may make the variation or approve the alteration if
8
the Secretary is satisfied, having regard to any matter that the
9
Secretary considers relevant, that, if the variation were made or the
10
alteration were approved:
11
(a) the requirements referred to in subsection 112(2) would
12
continue to be met; and
13
(b) any other requirement prescribed by the rules would be met.
14
Note:
The occupier of a registered establishment may commit an offence or
15
be liable to a civil penalty if:
16
(a) the establishment is altered (including by way of addition to the
17
establishment); and
18
(b) the alteration has not been approved, or the occupier has not been
19
given notice of the approval (see section 122).
20
121 Notice of variation or approval of alteration
21
(1) If the Secretary makes a variation or approves an alteration in
22
relation to the registration of an establishment under
23
paragraph 120(2)(a), the Secretary must give the occupier of the
24
establishment written notice of the variation or approval.
25
(2) The notice must state the following:
26
(a) details of the variation or approval;
27
(b) if the variation is of the conditions of the registration--the
28
varied conditions;
29
(c) the date the variation or approval takes effect;
30
(d) any other information prescribed by the rules.
31
(3) If the certificate of registration for the establishment needs to be
32
changed to take account of the variation or approval, the Secretary
33
must, within 7 days after making the variation or giving the
34
approval, give the occupier of the establishment a new certificate
35
Registered establishments
Chapter 4
Variation of registration
Part 4
Application by occupier
Division 1
Section 122
No. , 2019
Export Control Bill 2019
139
of registration including the variation or alteration that has been
1
approved.
2
Note:
The registration, as varied, remains in force as provided by
3
section 115.
4
122 Certain alterations of registered establishment must not be
5
made unless approved etc.
6
(1) The occupier of a registered establishment contravenes this
7
subsection if:
8
(a) the establishment is altered (including by way of addition to
9
the establishment); and
10
(b) either:
11
(i) the alteration has not been approved under
12
subsection 120(2); or
13
(ii) the alteration has been approved under
14
subsection 120(2) but the Secretary has not given the
15
occupier notice of the approval under section 121.
16
Note 1:
The physical elements of an offence against subsection (3) are set out
17
in this subsection (see section 370).
18
Note 2:
The Secretary may suspend or revoke the registration of the
19
establishment if the occupier contravenes this subsection (see
20
paragraphs 127(1)(j) and 138(1)(j)).
21
(2) Subsection (1) does not apply to an alteration of a kind prescribed
22
by the rules.
23
Note:
A defendant bears an evidential burden in relation to the matter in this
24
subsection (see subsection 13.3(3) of the
Criminal Code
and
25
section 96 of the Regulatory Powers Act).
26
Fault-based offence
27
(3) The occupier of a registered establishment commits an offence if
28
the occupier contravenes subsection (1).
29
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
30
Chapter 4
Registered establishments
Part 4
Variation of registration
Division 1
Application by occupier
Section 122
140
Export Control Bill 2019
No. , 2019
Civil penalty provision
1
(4) The occupier of a registered establishment is liable to a civil
2
penalty if the occupier contravenes subsection (1).
3
Civil penalty:
240 penalty units.
4
Registered establishments
Chapter 4
Variation of registration
Part 4
Variation by Secretary
Division 2
Section 123
No. , 2019
Export Control Bill 2019
141
Division 2--Variation by Secretary
1
123 Secretary may make variations in relation to registration
2
(1) The Secretary may do any of the following in relation to the
3
registration of an establishment:
4
(a) vary any aspect of the registration, including so that it does
5
not cover:
6
(i) a kind of export operations; or
7
(ii) a kind of prescribed goods; or
8
(iii) if applicable, a place to which goods may be exported;
9
(b) vary the conditions of the registration (including by imposing
10
new conditions);
11
(c) if there is no expiry date for the registration--vary the
12
registration by setting an expiry date for the registration;
13
(d) if there is an expiry date for the registration (whether under
14
paragraph 115(4)(a) or (b))--vary the registration by setting
15
a different expiry date for the registration;
16
(e) if there is an expiry date for the registration under
17
paragraph 115(4)(b)--vary the registration by revoking that
18
expiry date.
19
Note 1:
If the Secretary revokes the expiry date for the registration under
20
paragraph (e), the registration will remain in force:
21
(a) if rules made for the purposes of subsection 115(5) apply in
22
relation to the registration--for the period prescribed by the
23
rules; or
24
(b) if there are no such rules--indefinitely (unless it is revoked).
25
Note 2:
Certain decisions under subsection (1) are reviewable decisions (see
26
Part 2 of Chapter 11).
27
(2) The Secretary may make a variation in relation to the registration
28
of an establishment under paragraph (1)(a), (b) or (c), or set an
29
earlier expiry date for the registration under paragraph (1)(d), only
30
if the Secretary reasonably believes that:
31
(a) the integrity of a kind of prescribed goods covered by the
32
registration cannot be ensured; or
33
(b) it is necessary to do so to ensure:
34
Chapter 4
Registered establishments
Part 4
Variation of registration
Division 2
Variation by Secretary
Section 123
142
Export Control Bill 2019
No. , 2019
(i) compliance with the requirements of this Act in relation
1
to the export operations and prescribed goods covered
2
by the registration; or
3
(ii) that importing country requirements relating to the
4
export operations and prescribed goods covered by the
5
registration are, or will be, met; or
6
(c) the occupier of the establishment is not a fit and proper
7
person (having regard to the matters referred to in
8
section 372); or
9
(d) a condition of the registration has been, or is being,
10
contravened; or
11
(e) the condition of, or the equipment or facilities in, the
12
establishment has changed; or
13
(f) there has been a change to the suitability of the establishment
14
for the export operations covered by the registration; or
15
(g) it is necessary to do so:
16
(i) to take account of an event notified under section 146;
17
or
18
(ii) to correct a minor or technical error; or
19
(h) the registration needs to be varied for any other reason
20
prescribed by the rules.
21
Notice of certain proposed variations
22
(3) The Secretary must not make a variation in relation to the
23
registration of an establishment under paragraph (1)(a), (b) or (c),
24
or set an earlier expiry date for the registration under
25
paragraph (1)(d), unless the Secretary has given a written notice to
26
the occupier of the establishment in accordance with
27
subsection (4).
28
(4) A notice under subsection (3) must:
29
(a) specify each proposed variation; and
30
(b) specify the grounds for each proposed variation; and
31
(c) subject to subsection (5), request the occupier of the
32
establishment to give the Secretary, within 14 days after the
33
day the notice is given, a written statement showing cause
34
why the proposed variation should not be made; and
35
Registered establishments
Chapter 4
Variation of registration
Part 4
Variation by Secretary
Division 2
Section 124
No. , 2019
Export Control Bill 2019
143
(d) include a statement setting out the occupier's right to seek
1
review of a decision to make the proposed variation.
2
(5) A notice under subsection (3) is not required to include the request
3
referred to in paragraph (4)(c) if the Secretary reasonably believes
4
that the grounds for the proposed variation are serious and urgent.
5
124 Notice of variation
6
(1) If the Secretary makes a variation in relation to the registration of
7
an establishment under subsection 123(1), the Secretary must give
8
the occupier of the establishment written notice of the variation.
9
(2) The notice must state the following:
10
(a) details of the variation;
11
(b) if the variation is of the conditions of the registration--the
12
varied conditions and any new conditions;
13
(c) if the variation affects the period of effect of the registration:
14
(i) the expiry date for the registration under
15
paragraph 115(4)(a) or (b) (whichever applies); or
16
(ii) if there is no expiry date for the registration--that the
17
registration remains in force unless it is revoked;
18
(d) the date the variation takes effect;
19
(e) any other information prescribed by the rules.
20
(3) If the occupier was given a notice (a
show cause notice
) under
21
subsection 123(3) that included the request referred to in
22
paragraph 123(4)(c), the variation must not take effect before the
23
earlier of the following:
24
(a) the day after any response to the request is received by the
25
Secretary;
26
(b) the end of 14 days after the show cause notice was given.
27
(4) If the certificate of registration for the establishment needs to be
28
changed to take account of the variation, the Secretary must, within
29
7 days after making the variation, give the occupier of the
30
establishment a new certificate of registration including the
31
variation.
32
Chapter 4
Registered establishments
Part 4
Variation of registration
Division 2
Variation by Secretary
Section 124
144
Export Control Bill 2019
No. , 2019
Note:
The registration, as varied, remains in force as provided by
1
section 115.
2
Registered establishments
Chapter 4
Suspension of registration
Part 5
Suspension requested by occupier
Division 1
Section 125
No. , 2019
Export Control Bill 2019
145
Part 5--Suspension of registration
1
Division 1--Suspension requested by occupier
2
125 Occupier may request suspension
3
(1) Subject to subsection (2), the occupier of a registered establishment
4
may request the Secretary to suspend the registration of the
5
establishment in relation to a kind of export operations and a kind
6
of prescribed goods and, if applicable, a place to which goods may
7
be exported.
8
(2) A request may be made under subsection (1) only in the
9
circumstances prescribed by the rules.
10
(3) A request under subsection (1) may relate to more than one kind of
11
export operations or more than one kind of prescribed goods and, if
12
applicable, more than one place.
13
(4) A request under subsection (1) must:
14
(a) be in writing; and
15
(b) state each kind of export operations and each kind of
16
prescribed goods and, if applicable, each place in relation to
17
which the registration is to be suspended; and
18
(c) state the reason for the suspension; and
19
(d) include any other information prescribed by the rules.
20
(5) If the Secretary receives a request from the occupier of a registered
21
establishment under subsection (1), the Secretary must, by written
22
notice to the occupier, suspend the registration as requested, with
23
effect on the day specified in the notice.
24
126 Request to revoke suspension
25
(1) If the registration of an establishment is suspended under
26
section 125, the occupier of the establishment may request the
27
Secretary to revoke the suspension.
28
(2) A request under subsection (1) must:
29
Chapter 4
Registered establishments
Part 5
Suspension of registration
Division 1
Suspension requested by occupier
Section 126
146
Export Control Bill 2019
No. , 2019
(a) be in writing; and
1
(b) state the reason for the request; and
2
(c) include any other information prescribed by the rules.
3
(3) If the Secretary receives a request from the occupier of a registered
4
establishment under subsection (1), the Secretary may:
5
(a) if the Secretary is satisfied that the reason for the suspension
6
no longer exists and there is no reason why the suspension
7
should not be revoked--revoke the suspension by written
8
notice to the occupier; or
9
(b) in any other case:
10
(i) suspend the registration of the establishment under
11
Division 2 of this Part; or
12
(ii) revoke the registration of the establishment under
13
Division 2 of Part 6.
14
Note:
A decision to suspend or revoke the registration of the establishment is
15
a reviewable decision (see Part 2 of Chapter 11).
16
Registered establishments
Chapter 4
Suspension of registration
Part 5
Suspension by Secretary
Division 2
Section 127
No. , 2019
Export Control Bill 2019
147
Division 2--Suspension by Secretary
1
127 Grounds for suspension--general
2
(1) The Secretary may suspend the registration of an establishment in
3
relation to one or more kinds of export operations and one or more
4
kinds of prescribed goods and, if applicable, one or more places to
5
which goods may be exported if the Secretary reasonably believes
6
any of the following:
7
(a) the integrity of a kind of prescribed goods covered by the
8
registration cannot be ensured;
9
(b) the occupier of the establishment is not a fit and proper
10
person (having regard to the matters referred to in
11
section 372);
12
(c) a requirement referred to in subsection 112(2) is no longer
13
met;
14
(d) a condition of the registration has been, or is being,
15
contravened;
16
(e) the condition of, or the equipment or facilities in, the
17
establishment has changed;
18
(f) there has been a change to the suitability of the establishment
19
for the export operations covered by the registration;
20
(g) the occupier of the establishment:
21
(i) failed to comply with a direction given to the occupier
22
by an authorised officer or the Secretary; or
23
(ii) failed to comply with a request by an authorised officer
24
to provide information or a document; or
25
(iii) failed to provide facilities and assistance to an auditor as
26
required by section 271; or
27
(iv) failed to comply with a request made by an auditor
28
under section 272;
29
(h) the occupier of the establishment has engaged in conduct
30
that:
31
(i) intimidated a person performing functions or exercising
32
powers under this Act; or
33
Chapter 4
Registered establishments
Part 5
Suspension of registration
Division 2
Suspension by Secretary
Section 127
148
Export Control Bill 2019
No. , 2019
(ii) hindered or prevented a person from performing
1
functions or exercising powers under this Act;
2
(i) the occupier of the establishment or any other person who
3
manages or controls export operations carried out at the
4
establishment:
5
(i) made a false, misleading or incomplete statement in an
6
application under this Chapter; or
7
(ii) gave false, misleading or incomplete information or
8
documents to the Secretary or to another person
9
performing functions or exercising powers under this
10
Act; or
11
(iii) gave false, misleading or incomplete information or
12
documents to the Secretary or the Department under a
13
prescribed agriculture law;
14
(j) the occupier of the establishment has contravened a
15
requirement of this Act in relation to the registration of the
16
establishment;
17
(k) a ground prescribed by the rules exists.
18
Note 1:
A suspension must not be for more than 12 months (see section 130).
19
Note 2:
A decision to suspend the registration of an establishment under this
20
section is a reviewable decision (see Part 2 of Chapter 11).
21
Notice of proposed suspension
22
(2) The Secretary must not suspend the registration of an
23
establishment under subsection (1) unless the Secretary has given a
24
written notice to the occupier of the establishment in accordance
25
with subsection (3).
26
(3) A notice under subsection (2) must:
27
(a) specify each kind of export operations and each kind of
28
prescribed goods and, if applicable, each place in relation to
29
which the registration is proposed to be suspended; and
30
(b) specify the grounds for the proposed suspension; and
31
(c) subject to subsection (4), request the occupier of the
32
registered establishment to give the Secretary, within 14 days
33
after the day the notice is given, a written statement showing
34
Registered establishments
Chapter 4
Suspension of registration
Part 5
Suspension by Secretary
Division 2
Section 128
No. , 2019
Export Control Bill 2019
149
cause why the registration should not be suspended as
1
proposed; and
2
(d) include a statement setting out the occupier's right to seek
3
review of a decision to suspend the registration as proposed.
4
(4) A notice under subsection (2) is not required to include the request
5
referred to in paragraph (3)(c) if the Secretary reasonably believes
6
that the grounds for the suspension are serious and urgent.
7
128 Grounds for suspension--overdue relevant Commonwealth
8
liability
9
Notice of proposed suspension
10
(1) The Secretary may suspend the registration of an establishment in
11
relation to all kinds of export operations and all kinds of prescribed
12
goods if:
13
(a) a relevant Commonwealth liability of the occupier of the
14
establishment, or relating to the establishment, is more than
15
30 days overdue; and
16
(b) the Secretary has given a written notice to the person (the
17
debtor
) who is liable to pay the relevant Commonwealth
18
liability in accordance with subsection (2); and
19
(c) within 8 days after the notice is given:
20
(i) the relevant Commonwealth liability has not been paid;
21
or
22
(ii) the debtor has not entered into an arrangement with the
23
Secretary to pay the relevant Commonwealth liability.
24
Note 1:
A suspension must not be for more than 12 months (see section 130).
25
Note 2:
A decision to suspend the registration of an establishment under this
26
section is a reviewable decision (see Part 2 of Chapter 11).
27
Note 3:
If the Secretary suspends the registration of the establishment under
28
this section, the Secretary may revoke the registration of the
29
establishment in certain circumstances (see section 139).
30
(2) A notice under subsection (1) must:
31
(a) state that a relevant Commonwealth liability of the debtor in
32
relation to a registered establishment is more than 30 days
33
overdue; and
34
Chapter 4
Registered establishments
Part 5
Suspension of registration
Division 2
Suspension by Secretary
Section 129
150
Export Control Bill 2019
No. , 2019
(b) state that the Secretary may suspend the registration of the
1
establishment in relation to all kinds of export operations and
2
all kinds of prescribed goods if, within 8 days after the notice
3
is given:
4
(i) the relevant Commonwealth liability is not paid; or
5
(ii) the debtor has not entered into an arrangement with the
6
Secretary to pay the relevant Commonwealth liability;
7
and
8
(c) include a statement setting out the debtor's right to seek
9
review of a decision to suspend the registration of the
10
establishment.
11
Secretary may direct that activities not be carried out
12
(3) If the Secretary suspends the registration of an establishment under
13
subsection (1), the Secretary may refuse to carry out, or direct a
14
person not to carry out, specified activities or kinds of activities in
15
relation to the debtor under this Act until the relevant
16
Commonwealth liability has been paid.
17
Note:
See also section 309 (general provisions relating to directions).
18
Action under this section does not affect liability to pay relevant
19
Commonwealth liability
20
(4) Action by the Secretary under this section does not affect the
21
liability of the debtor to pay the relevant Commonwealth liability.
22
129 Notice of suspension
23
(1) If the Secretary decides to suspend the registration of an
24
establishment under this Division, the Secretary must give the
25
occupier of the establishment a written notice stating the following:
26
(a) that the registration is to be suspended, for the period
27
specified in the notice, in relation to all or specified kinds of
28
export operations and all or specified kinds of prescribed
29
goods and, if applicable, all or specified places to which
30
goods may be exported;
31
(b) the reasons for the suspension;
32
(c) the date the suspension is to start;
33
Registered establishments
Chapter 4
Suspension of registration
Part 5
Suspension by Secretary
Division 2
Section 130
No. , 2019
Export Control Bill 2019
151
(d) the period of the suspension.
1
Note:
The notice must also state the matters referred to in section 382.
2
(2) If the occupier was given a notice (a
show cause notice
) under
3
subsection 127(2) that included the request referred to in
4
paragraph 127(3)(c), the suspension must not start before the
5
earlier of the following:
6
(a) the day after any response to the request is received by the
7
Secretary;
8
(b) the end of 14 days after the show cause notice was given.
9
130 Period of suspension
10
(1) A suspension of the registration of an establishment under this
11
Division must not be for more than 12 months.
12
(2) The Secretary may vary the period of a suspension under this
13
Division by written notice to the occupier of the establishment.
14
However, the total period of the suspension must not be more than
15
12 months.
16
Note:
A decision to extend the period of a suspension is a reviewable
17
decision (see Part 2 of Chapter 11).
18
131 Revocation of suspension
19
The Secretary may revoke a suspension of the registration of an
20
establishment under this Division by written notice to the occupier
21
of the establishment.
22
Chapter 4
Registered establishments
Part 5
Suspension of registration
Division 3
Direction to cease carrying out export operations
Section 132
152
Export Control Bill 2019
No. , 2019
Division 3--Direction to cease carrying out export
1
operations
2
132 Direction to cease carrying out export operations--failure to
3
comply with conditions or requirements of this Act etc.
4
(1) The Secretary may give the occupier of a registered establishment
5
a written direction to cease carrying out one or more kinds of
6
export operations in relation to particular prescribed goods, or a
7
kind of prescribed goods, covered by the registration if the
8
Secretary reasonably suspects that:
9
(a) a condition of the registration of the establishment has been
10
contravened, or it is likely that such a condition will be
11
contravened; or
12
(b) the occupier has not complied, or is likely not to comply,
13
with a requirement of this Act; or
14
(c) the integrity of the particular prescribed goods, or the kind of
15
prescribed goods, covered by the registration cannot be
16
ensured, or it is likely that the integrity of the particular
17
prescribed goods, or the kind of prescribed goods, covered by
18
the registration will not be able to be ensured; or
19
(d) the particular prescribed goods, or the kind of prescribed
20
goods, covered by the registration:
21
(i) do not comply, or are not likely to comply, with a
22
requirement of this Act that applies in relation to the
23
goods; or
24
(ii) do not meet, or are not likely to meet, an importing
25
country requirement relating to the goods.
26
Note 1:
An authorised officer may also give a direction to the occupier of the
27
registered establishment (see section 305).
28
Note 2:
See also section 309 (general provisions relating to directions).
29
(2) A direction under subsection (1) must state:
30
(a) the reasons for giving the direction; and
31
(b) the date that the occupier is to cease carrying out the relevant
32
export operations in relation to the particular prescribed
33
goods or kind of prescribed goods (as the case may be); and
34
Registered establishments
Chapter 4
Suspension of registration
Part 5
Direction to cease carrying out export operations
Division 3
Section 133
No. , 2019
Export Control Bill 2019
153
(c) that the person may commit an offence or be liable to a civil
1
penalty if the person fails to comply with the direction.
2
Registration taken to have been suspended
3
(3) If a direction is given to the occupier of a registered establishment
4
under subsection (1) to cease carrying out one or more kinds of
5
export operations in relation to one or more kinds of prescribed
6
goods covered by the registration, the registration of the
7
establishment is taken to have been suspended in relation to those
8
kinds of export operations and those kinds of goods until the
9
direction is revoked.
10
133 Occupier must comply with direction
11
(1) If the occupier of a registered establishment is given a direction
12
under subsection 132(1), the occupier must comply with the
13
direction.
14
Fault-based offence
15
(2) The occupier of a registered establishment commits an offence if:
16
(a) the occupier is given a direction under subsection 132(1); and
17
(b) the occupier engages in conduct; and
18
(c) the conduct contravenes the direction.
19
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
20
Civil penalty provision
21
(3) The occupier of a registered establishment is liable to a civil
22
penalty if the occupier contravenes subsection (1).
23
Civil penalty:
240 penalty units.
24
134 Revocation of direction
25
(1) The Secretary must revoke a direction given to the occupier of a
26
registered establishment under subsection 132(1) if the Secretary is
27
satisfied that the reasons for the direction no longer exist.
28
Chapter 4
Registered establishments
Part 5
Suspension of registration
Division 3
Direction to cease carrying out export operations
Section 134
154
Export Control Bill 2019
No. , 2019
(2) The Secretary must give the occupier of the registered
1
establishment written notice of the revocation.
2
Registered establishments
Chapter 4
Suspension of registration
Part 5
Other provisions
Division 4
Section 135
No. , 2019
Export Control Bill 2019
155
Division 4--Other provisions
1
135 Effect of suspension
2
(1) If the registration of an establishment is suspended wholly or in
3
part under Division 1 or 2, or is taken to have been suspended
4
under subsection 132(3):
5
(a) the registration of the establishment remains in force while it
6
is suspended; and
7
(b) subject to rules made for the purposes of subsection (2), the
8
requirements of this Act in relation to the registration
9
(including the conditions of the registration) must be
10
complied with while the registration is suspended.
11
(2) The rules may prescribe requirements of this Act (including
12
conditions of the registration of an establishment) that are not
13
required to be complied with during any period when the
14
registration is suspended.
15
136 Export operations must not be carried out while registration
16
suspended
17
(1) The occupier of a registered establishment contravenes this
18
subsection if:
19
(a) the occupier was given a notice of suspension in relation to
20
the registration of the establishment under subsection 125(5)
21
or 129(1); and
22
(b) export operations in relation to which the registration was
23
suspended were carried out at the establishment while the
24
registration was suspended.
25
Note:
The physical elements of an offence against subsection (2) are set out
26
in this subsection (see section 370).
27
Fault-based offence
28
(2) The occupier of a registered establishment commits an offence if
29
the occupier contravenes subsection (1).
30
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
31
Chapter 4
Registered establishments
Part 5
Suspension of registration
Division 4
Other provisions
Section 136
156
Export Control Bill 2019
No. , 2019
Civil penalty provision
1
(3) The occupier of a registered establishment is liable to a civil
2
penalty if the occupier contravenes subsection (1).
3
Civil penalty:
240 penalty units.
4
Registered establishments
Chapter 4
Revocation of registration
Part 6
Revocation requested by occupier
Division 1
Section 137
No. , 2019
Export Control Bill 2019
157
Part 6--Revocation of registration
1
Division 1--Revocation requested by occupier
2
137 Occupier may request revocation
3
(1) The occupier of a registered establishment (including an
4
establishment in relation to which a suspension is in effect under
5
Part 5) may request the Secretary to revoke the registration of the
6
establishment.
7
Note:
If the occupier does not wish to revoke the registration of the
8
establishment in relation to all kinds of export operations and all kinds
9
of prescribed goods, the occupier may apply to vary the registration
10
under Division 1 of Part 4.
11
(2) A request under subsection (1) must:
12
(a) be in writing; and
13
(b) include the information (if any) prescribed by the rules.
14
(3) If the Secretary receives a request from the occupier of a registered
15
establishment under subsection (1), the Secretary must, by written
16
notice to the occupier, revoke the registration of the establishment
17
with effect on the day specified in the notice.
18
(4) Subsection (3) does not apply if, before the request under
19
subsection (1) was made, the Secretary:
20
(a) had given the occupier of the establishment a notice under
21
subsection 138(2) in relation to the registration; and
22
(b) had not decided whether to revoke the registration or not.
23
Chapter 4
Registered establishments
Part 6
Revocation of registration
Division 2
Revocation by Secretary
Section 138
158
Export Control Bill 2019
No. , 2019
Division 2--Revocation by Secretary
1
138 Grounds for revocation--general
2
(1) The Secretary may revoke the registration of an establishment
3
(including an establishment in relation to which a suspension is in
4
effect under Part 5) if the Secretary reasonably believes any of the
5
following:
6
(a) the integrity of a kind of prescribed goods covered by the
7
registration cannot be ensured;
8
(b) the occupier of the establishment is not a fit and proper
9
person (having regard to the matters referred to in
10
section 372);
11
(c) a requirement referred to in subsection 112(2) is no longer
12
met;
13
(d) a condition of the registration has been, or is being,
14
contravened;
15
(e) the condition of, or the equipment or facilities in, the
16
establishment has changed;
17
(f) there has been a change to the suitability of the establishment
18
for the export operations covered by the registration;
19
(g) the occupier of the establishment:
20
(i) failed to comply with a direction given to the occupier
21
by an authorised officer or the Secretary; or
22
(ii) failed to comply with a request by an authorised officer
23
to provide information or a document; or
24
(iii) failed to provide facilities and assistance to an auditor as
25
required by section 271; or
26
(iv) failed to comply with a request made by an auditor
27
under section 272;
28
(h) the occupier of the establishment has engaged in conduct
29
that:
30
(i) intimidated a person performing functions or exercising
31
powers under this Act; or
32
(ii) hindered or prevented a person from performing
33
functions or exercising powers under this Act;
34
Registered establishments
Chapter 4
Revocation of registration
Part 6
Revocation by Secretary
Division 2
Section 138
No. , 2019
Export Control Bill 2019
159
(i) the occupier of the establishment or any other person who
1
manages or controls export operations carried out at the
2
establishment:
3
(i) made a false, misleading or incomplete statement in an
4
application under this Chapter; or
5
(ii) gave false, misleading or incomplete information or
6
documents to the Secretary or to another person
7
performing functions or exercising powers under this
8
Act; or
9
(iii) gave false, misleading or incomplete information or
10
documents to the Secretary or the Department under a
11
prescribed agriculture law;
12
(j) the occupier of the establishment has contravened a
13
requirement of this Act in relation to the registration of the
14
establishment;
15
(k) a ground prescribed by the rules exists.
16
Note:
A decision to revoke the registration of an establishment under this
17
section is a reviewable decision (see Part 2 of Chapter 11).
18
Notice of proposed revocation
19
(2) The Secretary must not revoke the registration of an establishment
20
under subsection (1) unless the Secretary has given a written notice
21
to the occupier of the establishment in accordance with
22
subsection (3).
23
(3) A notice under subsection (2) must:
24
(a) specify the grounds for the proposed revocation; and
25
(b) subject to subsection (4), request the occupier of the
26
registered establishment to give the Secretary, within 14 days
27
after the day the notice is given, a written statement showing
28
cause why the registration should not be revoked; and
29
(c) include a statement setting out the occupier's right to seek
30
review of a decision to revoke the registration.
31
(4) A notice under subsection (2) is not required to include the request
32
referred to in paragraph (3)(b) if the Secretary reasonably believes
33
that the grounds for the revocation are serious and urgent.
34
Chapter 4
Registered establishments
Part 6
Revocation of registration
Division 2
Revocation by Secretary
Section 139
160
Export Control Bill 2019
No. , 2019
139 Grounds for revocation--overdue relevant Commonwealth
1
liability
2
(1) The Secretary may revoke the registration of an establishment if:
3
(a) the registration is suspended under subsection 128(1) for
4
non-payment of a relevant Commonwealth liability; and
5
(b) within 90 days after the start of the suspension:
6
(i) the relevant Commonwealth liability had not been paid;
7
or
8
(ii) the person (the
debtor
) who is liable to pay the relevant
9
Commonwealth liability had not entered into an
10
arrangement with the Secretary to pay the relevant
11
Commonwealth liability.
12
Note:
A decision to revoke the registration of an establishment under this
13
section is a reviewable decision (see Part 2 of Chapter 11).
14
Secretary may direct that activities not be carried out
15
(2) If the Secretary revokes the registration of an establishment under
16
subsection (1), the Secretary may refuse to carry out, or direct a
17
person not to carry out, specified activities or kinds of activities in
18
relation to the debtor under this Act until the relevant
19
Commonwealth liability has been paid.
20
Note:
See also section 309 (general provisions relating to directions).
21
Action under this section does not affect liability to pay relevant
22
Commonwealth liability
23
(3) Action by the Secretary under this section does not affect the
24
liability of the debtor to pay the relevant Commonwealth liability.
25
140 Notice of revocation
26
(1) If the Secretary decides to revoke the registration of an
27
establishment under this Division, the Secretary must give the
28
occupier of the establishment a written notice stating the following:
29
(a) that the registration of the establishment is to be revoked;
30
(b) the reasons for the revocation;
31
(c) the date the revocation is to take effect.
32
Registered establishments
Chapter 4
Revocation of registration
Part 6
Revocation by Secretary
Division 2
Section 140
No. , 2019
Export Control Bill 2019
161
Note:
The notice must also state the matters referred to in section 382.
1
(2) If the occupier was given a notice (a
show cause notice
) under
2
subsection 138(2) that included the request referred to in
3
paragraph 138(3)(b), the revocation must not take effect before the
4
earlier of the following:
5
(a) the day after any response to the request is received by the
6
Secretary;
7
(b) the end of 14 days after the show cause notice was given.
8
Chapter 4
Registered establishments
Part 6
Revocation of registration
Division 3
Other provisions
Section 141
162
Export Control Bill 2019
No. , 2019
Division 3--Other provisions
1
141 Export operations must not be carried out after registration of
2
establishment revoked
3
(1) A person contravenes this subsection if:
4
(a) the person was the occupier of a registered establishment;
5
and
6
(b) the person was given notice of revocation of the registration
7
of the establishment under subsection 137(3) or 140(1); and
8
(c) export operations that were covered by the registration of the
9
establishment were carried out at the establishment after the
10
revocation took effect.
11
Note:
The physical elements of an offence against subsection (2) are set out
12
in this subsection (see section 370).
13
Fault-based offence
14
(2) A person commits an offence if the person contravenes
15
subsection (1).
16
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
17
Civil penalty provision
18
(3) A person is liable to a civil penalty if the person contravenes
19
subsection (1).
20
Civil penalty:
240 penalty units.
21
142 Secretary may require action to be taken after registration
22
revoked
23
(1) This section applies if:
24
(a) a person was given notice of revocation of the registration of
25
an establishment under subsection 137(3) or 140(1); or
26
(b) the registration of the establishment was revoked under
27
Division 1 or 2.
28
Registered establishments
Chapter 4
Revocation of registration
Part 6
Other provisions
Division 3
Section 142
No. , 2019
Export Control Bill 2019
163
(2) The Secretary may, in writing, direct the occupier of the
1
establishment to take specified action, within a specified period
2
after the registration is revoked, in relation to the export operations
3
and prescribed goods that were covered by the registration. The
4
action must be action that is necessary for the purpose of achieving
5
one or more objects of this Act.
6
(3) A direction to a person under subsection (2) must state that the
7
person could commit an offence or be liable to a civil penalty if the
8
person fails to comply with the direction.
9
Note:
See also section 309 (general provisions relating to directions).
10
(4) A person who is given a direction under subsection (2) must
11
comply with the direction.
12
Fault-based offence
13
(5) A person commits an offence if:
14
(a) the person is given a direction under subsection (2); and
15
(b) the person engages in conduct; and
16
(c) the conduct contravenes the direction.
17
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
18
Civil penalty provision
19
(6) A person is liable to a civil penalty if the person contravenes
20
subsection (4).
21
Civil penalty:
240 penalty units.
22
Chapter 4
Registered establishments
Part 7
Obligations of occupiers of registered establishments
Section 143
164
Export Control Bill 2019
No. , 2019
Part 7--Obligations of occupiers of registered
1
establishments
2
3
143 Export operations not covered by registration must not be
4
carried out
5
(1) The occupier of a registered establishment contravenes this
6
subsection if:
7
(a) a kind of export operations is carried out in relation to a kind
8
of prescribed goods at the establishment; and
9
(b) the registration of the establishment does not cover that kind
10
of export operations in relation to that kind of goods.
11
Fault-based offence
12
(2) The occupier of a registered establishment commits an offence if
13
the occupier contravenes subsection (1).
14
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
15
Civil penalty provision
16
(3) The occupier of a registered establishment is liable to a civil
17
penalty if the occupier contravenes subsection (1).
18
Civil penalty:
240 penalty units.
19
144 Conditions of registration must not be contravened
20
Registration that is not suspended
21
(1) A person contravenes this subsection if:
22
(a) the person is the occupier of a registered establishment; and
23
(b) the registration is not suspended wholly or in part under
24
Part 5; and
25
(c) a condition of the registration is contravened.
26
Registered establishments
Chapter 4
Obligations of occupiers of registered establishments
Part 7
Section 144
No. , 2019
Export Control Bill 2019
165
Note:
The physical elements of an offence against subsection (2) are set out
1
in this subsection (see section 370).
2
Fault-based offence
3
(2) A person commits an offence if the person contravenes
4
subsection (1).
5
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
6
Civil penalty provision
7
(3) A person is liable to a civil penalty if the person contravenes
8
subsection (1).
9
Civil penalty:
240 penalty units.
10
Registration that is suspended
11
(4) A person contravenes this subsection if:
12
(a) the person is the occupier of a registered establishment; and
13
(b) the registration is suspended wholly or in part under Part 5;
14
and
15
(c) a condition of the registration is contravened; and
16
(d) the condition is required to be complied with during the
17
period of the suspension.
18
Note:
The physical elements of an offence against subsection (5) are set out
19
in this subsection (see section 370).
20
Fault-based offence
21
(5) A person commits an offence if the person contravenes
22
subsection (4).
23
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
24
Civil penalty provision
25
(6) A person is liable to a civil penalty if the person contravenes
26
subsection (4).
27
Civil penalty:
240 penalty units.
28
Chapter 4
Registered establishments
Part 7
Obligations of occupiers of registered establishments
Section 145
166
Export Control Bill 2019
No. , 2019
145 Additional or corrected information in relation to application
1
for registration etc.
2
(1) The occupier of a registered establishment must comply with
3
subsection (2) if:
4
(a) the occupier becomes aware that information included in an
5
application made by the occupier under this Chapter, or
6
information or a document given to the Secretary in relation
7
to such an application, was incomplete or incorrect; or
8
(b) a change prescribed by the rules occurs.
9
(2) The occupier of the establishment must, as soon as practicable,
10
give the Secretary additional or corrected information, to the extent
11
that it is relevant to assessing whether:
12
(a) the requirements of this Act in relation to a matter covered by
13
the registration of the establishment have been, are being, or
14
will be complied with; or
15
(b) importing country requirements relating to a matter covered
16
by the registration of the establishment have been, are being,
17
or will be met.
18
Note 1:
A person may commit an offence or be liable to a civil penalty if the
19
person makes a false or misleading statement in an application or
20
provides false or misleading information or documents (see
21
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
22
sections 367, 368 and 369 of this Act).
23
Note 2:
The Secretary may suspend or revoke the registration of the
24
establishment if the occupier fails to comply with this subsection (see
25
paragraphs 127(1)(j) and 138(1)(j)).
26
Note 3:
This section is not subject to the privilege against self-incrimination
27
(see section 426).
28
Civil penalty provision
29
(3) A person is liable to a civil penalty if:
30
(a) the person is required to give information to the Secretary
31
under subsection (2); and
32
(b) the person fails to comply with the requirement.
33
Civil penalty:
60 penalty units.
34
Registered establishments
Chapter 4
Obligations of occupiers of registered establishments
Part 7
Section 146
No. , 2019
Export Control Bill 2019
167
146 Notice of changes to occupier of registered establishment
1
(1) The occupier of a registered establishment must notify the
2
Secretary, in writing, as soon as practicable after any of the
3
following events occurs:
4
(a) there is a change in the occupier's business structure;
5
(b) if the occupier is an individual--the individual enters into a
6
personal insolvency agreement under Part X of the
7
Bankruptcy Act 1966
;
8
(c) if the occupier is a corporation--the corporation:
9
(i) enters into administration (within the meaning of
10
section 435C of the
Corporations Act 2001
); or
11
(ii) is to be wound up (whether by a court or voluntarily);
12
(d) there is a change in the trading name, business address or
13
contact details of the occupier;
14
(e) any other event prescribed by the rules.
15
Example: For the purposes of paragraph (a), each of the following would be a
16
change in the occupier's business structure:
17
(a) a change in a person who manages or controls export operations
18
carried out at the establishment;
19
(b) if the occupier is a partnership--a change in the membership of
20
the partnership.
21
Note:
The Secretary may suspend or revoke the registration of an
22
establishment if:
23
(a) the occupier of the establishment is not a fit and proper person
24
(see paragraphs 127(1)(b) and 138(1)(b)); or
25
(b) the occupier fails to comply with this subsection (see paragraphs
26
127(1)(j) and 138(1)(j)).
27
Civil penalty provision
28
(2) A person is liable to a civil penalty if:
29
(a) the person is required to notify the Secretary of an event in
30
accordance with subsection (1); and
31
(b) the person fails to comply with the requirement.
32
Civil penalty:
60 penalty units.
33
Chapter 4
Registered establishments
Part 7
Obligations of occupiers of registered establishments
Section 147
168
Export Control Bill 2019
No. , 2019
147 Notice of person ceasing to be occupier of registered
1
establishment
2
(1) If the person (the
former occupier
) in whose name an
3
establishment is registered ceases:
4
(a) to operate the business that carries out export operations in
5
relation to prescribed goods at the establishment; or
6
(b) to manage or control export operations carried out in relation
7
to prescribed goods at the establishment;
8
the former occupier must, as soon as practicable after so ceasing,
9
notify the Secretary, in writing, of that fact. The notice must also
10
include contact details for the former occupier.
11
(2) The registration of the establishment is taken to have been revoked
12
at the earlier of the following:
13
(a) the end of the day a notice under subsection (1) is received
14
by the Secretary;
15
(b) the end of the seventh day after the day the former occupier
16
ceased:
17
(i) to operate the business that carries out export operations
18
in relation to prescribed goods at the establishment; or
19
(ii) to manage or control export operations carried out in
20
relation to prescribed goods at the establishment.
21
Civil penalty provision
22
(3) A person is liable to a civil penalty if:
23
(a) the person is required to notify the Secretary under
24
subsection (1); and
25
(b) the person fails to comply with the requirement.
26
Civil penalty:
60 penalty units.
27
Registered establishments
Chapter 4
Other matters
Part 8
Section 148
No. , 2019
Export Control Bill 2019
169
Part 8--Other matters
1
2
148 Register of registered establishments
3
(1) The Secretary must keep a register of information about
4
establishments that are registered under this Chapter.
5
(2) The register may be kept at a place and in a form that the Secretary
6
determines, and may be kept by electronic means.
7
(3) The register must include the information in relation to a registered
8
establishment prescribed by the rules.
9
Chapter 5
Approved arrangements
Part 1
Introduction
Section 149
170
Export Control Bill 2019
No. , 2019
Chapter 5--Approved arrangements
1
Part 1--Introduction
2
3
149 Simplified outline of this Chapter
4
The Secretary may, on application by a person, approve a proposed
5
arrangement for a kind of export operations in relation to a kind of
6
prescribed goods.
7
A proposed arrangement may relate to more than one kind of
8
export operations in relation to more than one kind of prescribed
9
goods for export to one or more places.
10
An approved arrangement is subject to certain conditions.
11
An approved arrangement may remain in force indefinitely or may
12
cease to be in force on an expiry date.
13
If there is an expiry date for an approved arrangement, the
14
approved arrangement may be renewed.
15
An approved arrangement or the conditions of the approved
16
arrangement may be varied.
17
An approved arrangement, or a part of an approved arrangement,
18
may be suspended. An approved arrangement may be revoked.
19
A show cause notice must be given to the holder of an approved
20
arrangement before the approved arrangement may be varied,
21
suspended or revoked (except in serious and urgent cases or if the
22
holder has requested the variation, suspension or revocation).
23
The holder of an approved arrangement must comply with certain
24
obligations.
25
Approved arrangements
Chapter 5
Approval of proposed arrangement
Part 2
Section 150
No. , 2019
Export Control Bill 2019
171
Part 2--Approval of proposed arrangement
1
2
150 Application for approval of proposed arrangement
3
(1) A person may apply to the Secretary to approve a proposed
4
arrangement for a kind of export operations in relation to a kind of
5
prescribed goods.
6
(2) A proposed arrangement:
7
(a) must be recorded in writing in one or more documents; and
8
(b) may relate to more than one kind of export operations and
9
more than one kind of prescribed goods; and
10
(c) may, but is not required to, specify one or more places to
11
which goods covered by the arrangement are to be exported.
12
(3) An application may relate to more than one proposed arrangement.
13
Note 1:
The export of a kind of prescribed goods may be prohibited unless
14
export operations in relation to the goods are carried out in accordance
15
with an approved arrangement covering the export operations and the
16
goods (see section 29 and the rules made for the purposes of that
17
section).
18
Note 2:
Section 377 sets out requirements for applications.
19
151 Secretary must decide whether to approve proposed
20
arrangement
21
(1) On receiving an application under section 150 to approve a
22
proposed arrangement, the Secretary must decide:
23
(a) to approve the arrangement; or
24
(b) to refuse to approve the arrangement.
25
Note 1:
See section 379 for matters relating to dealing with applications.
26
Note 2:
If the application is to approve more than one proposed arrangement,
27
the Secretary may decide to approve some or all of the proposed
28
arrangements.
29
Note 3:
If the Secretary does not make a decision in relation to the application
30
within the consideration period for the application, the Secretary is
31
Chapter 5
Approved arrangements
Part 2
Approval of proposed arrangement
Section 151
172
Export Control Bill 2019
No. , 2019
taken to have refused the application at the end of that period (see
1
subsection 379(2)).
2
Note 4:
A decision to refuse to approve a proposed arrangement is a
3
reviewable decision (see Part 2 of Chapter 11) and the Secretary must
4
give the applicant written notice of the decision (see section 382).
5
(2) The Secretary may approve the proposed arrangement if the
6
Secretary is satisfied, having regard to any matter that the
7
Secretary considers relevant, that the following requirements are
8
met:
9
(a) if the applicant is a kind of person who is required by rules
10
made for the purposes of section 373 to be a fit and proper
11
person for the purposes of this Chapter--the applicant is a fit
12
and proper person;
13
(b) either:
14
(i) all relevant Commonwealth liabilities of the applicant
15
have been paid or are taken to have been paid; or
16
(ii) if one or more relevant Commonwealth liabilities of the
17
applicant have not been paid or are not taken to have
18
been paid--the non-payment is due to exceptional
19
circumstances;
20
(c) carrying out a kind of export operations in relation to a kind
21
of prescribed goods in accordance with the arrangement will
22
ensure:
23
(i) compliance with the requirements of this Act in relation
24
to those export operations and goods; and
25
(ii) that importing country requirements relating to those
26
export operations and goods will be met;
27
(d) any other requirement prescribed by the rules.
28
Note:
For the purposes of paragraph (b), a relevant Commonwealth liability
29
of a person is taken to have been paid in certain circumstances (see
30
section 431).
31
(3) If the Secretary approves the proposed arrangement, the Secretary
32
may, if the Secretary considers it appropriate, set an expiry date for
33
the approved arrangement.
34
Note 1:
If there is no expiry date for the approved arrangement, the approved
35
arrangement remains in force unless it is revoked (see
36
subsection 154(1)).
37
Approved arrangements
Chapter 5
Approval of proposed arrangement
Part 2
Section 152
No. , 2019
Export Control Bill 2019
173
Note 2:
A decision to set an expiry date for an approved arrangement is a
1
reviewable decision (see Part 2 of Chapter 11).
2
(4) The Secretary may set an expiry date for the approved arrangement
3
under subsection (3) even if rules made for the purposes of
4
subsection 154(5) apply in relation to the approved arrangement.
5
152 Conditions of approved arrangement
6
(1) If the Secretary approves a proposed arrangement, the approved
7
arrangement is subject to:
8
(a) the conditions provided by this Act; and
9
(b) the conditions prescribed by the rules (other than any of those
10
conditions that the Secretary decides are not to be conditions
11
of the approved arrangement); and
12
(c) any additional conditions that the Secretary considers
13
appropriate and that are specified in the notice given to the
14
applicant under section 153.
15
Note 1:
The holder of an approved arrangement may commit an offence or be
16
liable to a civil penalty if a condition of the approved arrangement is
17
contravened (see section 184).
18
Note 2:
An approved arrangement may be suspended or revoked if a condition
19
of the approved arrangement is contravened (see paragraphs 171(1)(d)
20
and 179(1)(d)).
21
Note 3:
A decision to approve a proposed arrangement subject to additional
22
conditions is a reviewable decision (see Part 2 of Chapter 11).
23
Note 4:
Part 7 sets out additional obligations of the holder of an approved
24
arrangement.
25
(2) Without limiting paragraph (1)(b), the rules may prescribe
26
conditions in relation to any or all of the following:
27
(a) the holder of an approved arrangement;
28
(b) a kind of export operations;
29
(c) a kind of prescribed goods;
30
(d) importing country requirements relating to a kind of export
31
operations or a kind of prescribed goods.
32
(3) Without limiting paragraph (1)(b) or (c), the rules may prescribe
33
conditions, and the Secretary may impose conditions, that are
34
Chapter 5
Approved arrangements
Part 2
Approval of proposed arrangement
Section 153
174
Export Control Bill 2019
No. , 2019
required to be complied with before or after the export of the goods
1
to which the conditions relate.
2
(4) For the purposes of this Act, conditions to which an approved
3
arrangement is subject under subsection (1) or section 157 are
4
conditions of the approved arrangement.
5
153 Notice of decision
6
If the Secretary approves a proposed arrangement, the Secretary
7
must give the applicant a written notice stating the following
8
information:
9
(a) the date the approved arrangement takes effect;
10
(b) that the approved arrangement remains in force indefinitely
11
or the expiry date for the approved arrangement;
12
(c) any conditions prescribed by the rules that the Secretary has
13
decided are not to be conditions of the approved
14
arrangement;
15
(d) any additional conditions of the approved arrangement;
16
(e) any other information prescribed by the rules.
17
154 Period of effect of approved arrangement
18
Approved arrangements that have no expiry date
19
(1) If there is no expiry date for an approved arrangement, the
20
approved arrangement remains in force unless:
21
(a) it is revoked under Part 6; or
22
(b) it is taken to have been revoked under section 188.
23
Approved arrangements that have an expiry date
24
(2) If there is an expiry date for an approved arrangement (including
25
an approved arrangement that has been renewed under Part 3), the
26
approved arrangement remains in force until the end of that expiry
27
date unless:
28
(a) the approved arrangement is renewed under Part 3 on or
29
before that date; or
30
Approved arrangements
Chapter 5
Approval of proposed arrangement
Part 2
Section 154
No. , 2019
Export Control Bill 2019
175
(b) the approved arrangement is revoked under Part 6, or is taken
1
to have been revoked under section 188, on or before that
2
date.
3
(3) There is an expiry date for an approved arrangement if:
4
(a) rules made for the purposes of subsection (5) apply in
5
relation to the approved arrangement; or
6
(b) an expiry date for the approved arrangement set under
7
subsection 151(3) or 156(3) or paragraph 165(1)(c) or (d) is
8
in force in relation to the approved arrangement.
9
(4) The
expiry date
for an approved arrangement is:
10
(a) if rules made for the purposes of subsection (5) apply in
11
relation to the approved arrangement and no expiry date set
12
under subsection 151(3) or 156(3) or paragraph 165(1)(c) or
13
(d) is in force in relation to the approved arrangement--the
14
last day of the period prescribed by the rules; or
15
(b) if an expiry date for the approved arrangement set under
16
subsection 151(3) or 156(3) or paragraph 165(1)(c) or (d) is
17
in force in relation to the approved arrangement--that date.
18
Rules may prescribe period of effect of approved arrangement
19
(5) The rules may prescribe the period during which an approved
20
arrangement remains in force. The rules may apply in relation to:
21
(a) approved arrangements generally; or
22
(b) approved arrangements for a kind of export operations in
23
relation to a kind of prescribed goods and, if applicable, a
24
place to which the goods may be exported.
25
Chapter 5
Approved arrangements
Part 3
Renewal of approved arrangement
Section 155
176
Export Control Bill 2019
No. , 2019
Part 3--Renewal of approved arrangement
1
2
155 Application to renew approved arrangement
3
(1) This section applies in relation to an approved arrangement
4
(including an approved arrangement that is suspended, or a part of
5
which is suspended, under Part 5) if there is an expiry date for the
6
approved arrangement.
7
Note:
See subsections 154(3) and (4) in relation to the expiry date for an
8
approved arrangement.
9
(2) The holder of the approved arrangement may apply to the
10
Secretary to renew the approved arrangement.
11
Note:
Section 377 sets out requirements for applications.
12
(3) An application for renewal may relate to more than one approved
13
arrangement.
14
(4) An application for renewal must be made:
15
(a) within the period prescribed by the rules; or
16
(b) if the Secretary allows a longer
period--within that longer
17
period.
18
(5) If an application to renew an arrangement is made after the period
19
applying under subsection (4):
20
(a) the application is taken to be an application to approve the
21
arrangement; and
22
(b) Part 2 applies in relation to the application; and
23
(c) the other provisions of this Part do not apply in relation to the
24
application.
25
156 Secretary must decide whether to renew approved arrangement
26
(1) On receiving an application under section 155 to renew an
27
approved arrangement, the Secretary must decide:
28
(a) to renew the approved arrangement; or
29
(b) to refuse to renew the approved arrangement.
30
Approved arrangements
Chapter 5
Renewal of approved arrangement
Part 3
Section 156
No. , 2019
Export Control Bill 2019
177
Note 1:
See section 379 for matters relating to dealing with applications.
1
Note 2:
If the application is to renew more than one approved arrangement,
2
the Secretary may decide to renew some or all of the approved
3
arrangements.
4
Note 3:
If the Secretary does not make a decision in relation to the application
5
within the consideration period for the application, the Secretary is
6
taken to have refused the application at the end of that period (see
7
subsection 379(2)).
8
Note 4:
A decision to refuse to renew an approved arrangement is a
9
reviewable decision (see Part 2 of Chapter 11) and the Secretary must
10
give the applicant written notice of the decision (see section 382).
11
(2) The Secretary may refuse to renew the approved arrangement if the
12
Secretary is not satisfied, having regard to any matter that the
13
Secretary considers relevant, of one or more of the following:
14
(a) if the holder of the approved arrangement is a kind of person
15
who is required by rules made for the purposes of section 373
16
to be a fit and proper person for the purposes of this
17
Chapter--the holder is a fit and proper person;
18
(b) either:
19
(i) all relevant Commonwealth liabilities of the holder have
20
been paid or are taken to have been paid; or
21
(ii) if one or more relevant Commonwealth liabilities of the
22
holder have not been paid or are not taken to have been
23
paid--the non-payment is due to exceptional
24
circumstances;
25
(c) the holder of the approved arrangement has complied with
26
the requirements of this Act in relation to the export
27
operations and goods covered by the approved arrangement;
28
(d) the conditions of the approved arrangement have been, and
29
are being, complied with;
30
(e) carrying out a kind of export operations in relation to a kind
31
of prescribed goods in accordance with the approved
32
arrangement will ensure:
33
(i) compliance with the requirements of this Act in relation
34
to those export operations and goods; and
35
(ii) that importing country requirements relating to those
36
export operations and goods will be met;
37
(f) any other requirement prescribed by the rules is met.
38
Chapter 5
Approved arrangements
Part 3
Renewal of approved arrangement
Section 157
178
Export Control Bill 2019
No. , 2019
Note:
For the purposes of paragraph (b), a relevant Commonwealth liability
1
of a person is taken to have been paid in certain circumstances (see
2
section 431).
3
(3) If the Secretary renews an approved arrangement, the Secretary
4
may, if the Secretary considers it appropriate, set an expiry date for
5
the approved arrangement.
6
Note 1:
If there is no expiry date for the approved arrangement, the approved
7
arrangement remains in force unless it is revoked (see
8
subsection 154(1)).
9
Note 2:
A decision to set an expiry date for a renewed approved arrangement
10
is a reviewable decision (see Part 2 of Chapter 11).
11
(4) The Secretary may set an expiry date for the approved arrangement
12
under subsection (3) even if rules made for the purposes of
13
subsection 154(5) apply in relation to the approved arrangement.
14
157 Conditions of renewed approved arrangement
15
(1) If the Secretary renews an approved arrangement, the approved
16
arrangement is subject to:
17
(a) the conditions provided by this Act; and
18
(b) the conditions prescribed by rules made for the purposes of
19
paragraph 152(1)(b) (other than any of those conditions that
20
the Secretary decides are not to be conditions of the approved
21
arrangement); and
22
(c) any additional conditions that the Secretary considers
23
appropriate and that are specified in the notice given under
24
section 158.
25
Note 1:
The holder of an approved arrangement may commit an offence or be
26
liable to a civil penalty if a condition of the approved arrangement is
27
contravened (see section 184).
28
Note 2:
An approved arrangement may be suspended or revoked if a condition
29
of the approved arrangement is contravened (see paragraphs 171(1)(d)
30
and 179(1)(d)).
31
Note 3:
A decision to renew an approved arrangement subject to additional
32
conditions is a reviewable decision (see Part 2 of Chapter 11).
33
Note 4:
Part 7 sets out additional obligations of the holder of an approved
34
arrangement.
35
Approved arrangements
Chapter 5
Renewal of approved arrangement
Part 3
Section 158
No. , 2019
Export Control Bill 2019
179
(2) Without limiting paragraph (1)(c), the Secretary may impose
1
conditions that are required to be complied with before or after the
2
export of the goods to which the conditions relate.
3
158 Notice of decision
4
If an approved arrangement is renewed, the Secretary must give the
5
holder of the approved arrangement a written notice stating the
6
information referred to in section 153.
7
Chapter 5
Approved arrangements
Part 4
Variation of approved arrangement
Division 1
Variations by holder
Section 159
180
Export Control Bill 2019
No. , 2019
Part 4--Variation of approved arrangement
1
Division 1--Variations by holder
2
Subdivision A--Non-significant variations
3
159 Holder may make non-significant variations of approved
4
arrangement
5
(1) The holder of an approved arrangement may implement a
6
variation, or 2 or more variations, of the approved arrangement if:
7
(a) the variation is, or the variations are, not an alternative
8
regulatory arrangement within the meaning of
9
subsection 379B(1); and
10
(b) the holder and the Secretary consider that the variation, or the
11
combined effect of the variations, is not significant (having
12
regard to the matters referred to in section 164).
13
(2) If the holder of an approved arrangement implements one or more
14
variations of the approved arrangement under subsection (1), the
15
holder must, as soon as practicable after doing so, make a written
16
record of each variation (by varying the text of the approved
17
arrangement or creating a separate document) and the reasons for
18
the variation.
19
Note:
The Secretary may suspend or revoke the approved arrangement if the
20
holder contravenes this subsection (see paragraphs 171(1)(k) and
21
179(1)(k)).
22
(3) If:
23
(a) the holder of an approved arrangement implements a
24
variation of the approved arrangement under subsection (1);
25
and
26
(b) the holder makes a written record of the variation as required
27
by subsection (2);
28
then, despite any other provision of this Act, a person does not
29
commit an offence, and is not liable to a civil penalty, only because
30
the variation was implemented before the written record was made.
31
Approved arrangements
Chapter 5
Variation of approved arrangement
Part 4
Variations by holder
Division 1
Section 160
No. , 2019
Export Control Bill 2019
181
Civil penalty provision
1
(4) The holder of an approved arrangement is liable to a civil penalty if
2
the holder contravenes subsection (2).
3
Civil penalty:
60 penalty units.
4
160 Date of effect of varied approved arrangement
5
If:
6
(a) the holder of an approved arrangement implements a
7
variation of the approved arrangement under
8
subsection 159(1); and
9
(b) the holder makes a written record of the variation as required
10
by subsection 159(2);
11
the approved arrangement is taken to have been varied on the date
12
the record of the variation was made under subsection 159(2).
13
Note:
The approved arrangement, as varied, remains in force as provided by
14
section 154.
15
Subdivision B--Significant variations and variation of
16
conditions
17
161 Application by holder for approval of approved alternative
18
regulatory arrangement or other significant variation or
19
to vary conditions
20
(1) The holder of an approved arrangement may apply to the
21
Secretary:
22
(a) to approve a variation of the approved arrangement to
23
implement an alternative regulatory arrangement approved
24
under paragraph 379C(1)(a); or
25
(b) to approve any other variation, or variations, of the approved
26
arrangement if the holder and the Secretary consider that the
27
variation, or the combined effect of the variations, is
28
significant (having regard to the matters referred to in
29
section 164); or
30
(c) to vary the conditions of the approved arrangement.
31
Chapter 5
Approved arrangements
Part 4
Variation of approved arrangement
Division 1
Variations by holder
Section 161
182
Export Control Bill 2019
No. , 2019
Note:
Section 377 sets out requirements for applications. A single
1
application may be made to approve a variation of an approved
2
arrangement and to renew the approved arrangement.
3
(2) If the Secretary receives an application under subsection (1) to
4
approve a variation, or vary conditions, the Secretary must decide:
5
(a) to approve the variation or vary the conditions; or
6
(b) to refuse to approve the variation or vary the conditions.
7
Note 1:
See section 379 for matters relating to dealing with applications.
8
Note 2:
If the Secretary does not make a decision in relation to the application
9
within the consideration period for the application, the Secretary is
10
taken to have refused the application at the end of that period (see
11
subsection 379(2)).
12
Note 3:
A decision to refuse the application is a reviewable decision (see
13
Part 2 of Chapter 11) and the Secretary must give the holder written
14
notice of the decision (see section 382).
15
(3) The Secretary may refuse to approve the variation, or vary the
16
conditions, if the Secretary is not satisfied, having regard to any
17
matter that the Secretary considers relevant, of one or more of the
18
following:
19
(a) either:
20
(i) all relevant Commonwealth liabilities of the holder of
21
the approved arrangement have been paid or are taken to
22
have been paid; or
23
(ii) if one or more relevant Commonwealth liabilities of the
24
holder have not been paid or are not taken to have been
25
paid--the non-payment is due to exceptional
26
circumstances;
27
(b) carrying out a kind of export operations in relation to a kind
28
of prescribed goods in accordance with the approved
29
arrangement as proposed to be varied will ensure:
30
(i) compliance with the requirements of this Act in relation
31
to those export operations and goods; and
32
(ii) that importing country requirements relating to those
33
export operations and goods will be met; and
34
(iii) the integrity of the goods;
35
(c) any other requirement prescribed by the rules is met.
36
Approved arrangements
Chapter 5
Variation of approved arrangement
Part 4
Variations by holder
Division 1
Section 162
No. , 2019
Export Control Bill 2019
183
Note 1:
For the purposes of paragraph (3)(a), a relevant Commonwealth
1
liability of a person is taken to have been paid in certain circumstances
2
(see section 431).
3
Note 2:
The holder of the approved arrangement may commit an offence or be
4
liable to a civil penalty if:
5
(a) a variation of the approved arrangement, or of the conditions of
6
the approved arrangement, referred to in subsection (1) is
7
implemented; and
8
(b) the variation has not been approved, or the holder has not been
9
given notice of the approval (see section 163).
10
162 Notice of variation
11
(1) If the Secretary approves a variation of an approved arrangement
12
or varies the conditions of an approved arrangement under
13
paragraph 161(2)(a), the Secretary must give the holder of the
14
approved arrangement written notice of the approval or variation.
15
(2) The notice must state the following:
16
(a) details of the variation that has been approved;
17
(b) if the variation is of the conditions of the approved
18
arrangement--the varied conditions;
19
(c) the date the variation takes effect;
20
(d) any other information prescribed by the rules.
21
Note:
The approved arrangement, as varied, remains in force as provided by
22
section 154.
23
163 Varied approved arrangement must not be implemented unless
24
variation approved etc.
25
(1) The holder of an approved arrangement contravenes this subsection
26
if:
27
(a) a variation of the approved arrangement, or of the conditions
28
of the approved arrangement, referred to in subsection 161(1)
29
is implemented; and
30
(b) either:
31
(i) the variation has not been approved under
32
paragraph 161(2)(a); or
33
Chapter 5
Approved arrangements
Part 4
Variation of approved arrangement
Division 1
Variations by holder
Section 164
184
Export Control Bill 2019
No. , 2019
(ii) the variation has been approved under
1
paragraph 161(2)(a) but the Secretary has not given the
2
holder notice of the approval under section 162.
3
Note 1:
The physical elements of an offence against subsection (2) are set out
4
in this subsection (see section 370).
5
Note 2:
The Secretary may suspend or revoke the approved arrangement if the
6
holder contravenes this subsection (see paragraphs 171(1)(k) and
7
179(1)(k)).
8
Fault-based offence
9
(2) The holder of an approved arrangement commits an offence if the
10
holder contravenes subsection (1).
11
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
12
Civil penalty provision
13
(3) The holder of an approved arrangement is liable to a civil penalty if
14
the holder contravenes subsection (1).
15
Civil penalty:
240 penalty units.
16
Subdivision C--Matters relating to whether proposed variation
17
of approved arrangement is significant
18
164 Matters to which regard must be had in considering whether
19
proposed variation of approved arrangement is
20
significant
21
(1) This section has effect for the purposes of paragraphs 159(1)(b)
22
and 161(1)(b).
23
(2) The matters to which the holder of an approved arrangement and
24
the Secretary must have regard in considering whether a variation,
25
or the combined effect of 2 or more variations, of the approved
26
arrangement is significant are as follows:
27
(a) whether the variation, or the variations, may have the effect
28
that carrying out a kind of export operations in relation to a
29
kind of prescribed goods in accordance with the approved
30
arrangement will no longer ensure:
31
Approved arrangements
Chapter 5
Variation of approved arrangement
Part 4
Variations by holder
Division 1
Section 164
No. , 2019
Export Control Bill 2019
185
(i) compliance with the requirements of this Act in relation
1
to those export operations and goods; or
2
(ii) that importing country requirements relating to those
3
export operations and goods will be met;
4
(b) whether the variation, or the variations, may adversely affect
5
the Secretary's ability to accurately assess:
6
(i) whether carrying out a kind of export operations in
7
relation to a kind of prescribed goods in accordance
8
with the approved arrangement will ensure the matters
9
referred to in subparagraphs (a)(i) and (ii); or
10
(ii) whether the integrity of a kind of prescribed goods
11
covered by the approved arrangement can be ensured;
12
(c) whether the variation or any of the variations:
13
(i) is of a kind of export operations or a kind of prescribed
14
goods covered by the approved arrangement; or
15
(ii) is of a kind prescribed by the rules.
16
Chapter 5
Approved arrangements
Part 4
Variation of approved arrangement
Division 2
Variation required or made by Secretary
Section 165
186
Export Control Bill 2019
No. , 2019
Division 2--Variation required or made by Secretary
1
165 Secretary may require approved arrangement to be varied or
2
make certain variations of approved arrangement
3
(1) The Secretary may do any of the following in relation to an
4
approved arrangement:
5
(a) require the holder of the approved arrangement to vary any
6
aspect of the approved arrangement, including so that it does
7
not cover:
8
(i) a kind of export operations; or
9
(ii) a kind of prescribed goods; or
10
(iii) if applicable, a place to which goods may be exported;
11
(b) vary the conditions of the approved arrangement (including
12
by imposing new conditions);
13
(c) if there is no expiry date for the approved arrangement--vary
14
the approved arrangement by setting an expiry date for the
15
approved arrangement;
16
(d) if there is an expiry date for the approved arrangement
17
(whether under paragraph 154(4)(a) or (b))--vary the
18
approved arrangement by setting a different expiry date for
19
the approved arrangement;
20
(e) if there is an expiry date for the approved arrangement under
21
paragraph 154(4)(b)--vary the approved arrangement by
22
revoking that expiry date.
23
Note 1:
If the Secretary revokes the expiry date for the approved arrangement
24
under paragraph (e), the approved arrangement will remain in force:
25
(a) if rules made for the purposes of subsection 154(5) apply in
26
relation to the approved arrangement--for the period prescribed
27
by the rules; or
28
(b) if there are no such rules--indefinitely (unless it is revoked).
29
Note 2:
Certain decisions under subsection (1) are reviewable decisions (see
30
Part 2 of Chapter 11).
31
(2) The Secretary may require the holder of the approved arrangement
32
to vary the approved arrangement under paragraph (1)(a), or make
33
a variation in relation to the approved arrangement under
34
paragraph (1)(b) or (c), or set an earlier expiry date for the
35
Approved arrangements
Chapter 5
Variation of approved arrangement
Part 4
Variation required or made by Secretary
Division 2
Section 165
No. , 2019
Export Control Bill 2019
187
approved arrangement under paragraph (1)(d), only if the Secretary
1
reasonably believes that:
2
(a) the integrity of a kind of prescribed goods covered by the
3
approved arrangement cannot be ensured; or
4
(b) if the holder is a kind of person who is required by rules
5
made for the purposes of section 373 to be a fit and proper
6
person for the purposes of this Chapter--the holder is not a
7
fit and proper person; or
8
(c) export operations covered by the approved arrangement have
9
not been, or are not being, carried out in accordance with the
10
approved arrangement, or a condition of the approved
11
arrangement has been, or is being, contravened; or
12
(d) circumstances relating to a kind of export operations carried
13
out in relation to a kind of prescribed goods covered by the
14
approved arrangement have changed; or
15
(e) it is necessary to do so to ensure:
16
(i) compliance with the requirements of this Act in relation
17
to the export operations and goods covered by the
18
approved arrangement; and
19
(ii) that importing country requirements relating to the
20
export operations and goods covered by the approved
21
arrangement are met; or
22
(f) an importing country requirement relating to a kind of
23
prescribed goods covered by the approved arrangement has
24
changed; or
25
(g) it is necessary to do so:
26
(i) to take account of an event notified under section 186;
27
or
28
(ii) to correct a minor or technical error; or
29
(h) the approved arrangement needs to be varied for any other
30
reason prescribed by the rules.
31
Notice of certain proposed variations
32
(3) The Secretary must not require the holder to vary the approved
33
arrangement under paragraph (1)(a), or make a variation in relation
34
to the approved arrangement under paragraph (1)(b) or (c), or set
35
an earlier expiry date for the approved arrangement under
36
Chapter 5
Approved arrangements
Part 4
Variation of approved arrangement
Division 2
Variation required or made by Secretary
Section 166
188
Export Control Bill 2019
No. , 2019
paragraph (1)(d), unless the Secretary has given a written notice to
1
the holder of the approved arrangement in accordance with
2
subsection (4).
3
(4) A notice under subsection (3) must:
4
(a) specify each proposed variation; and
5
(b) specify the grounds for each proposed variation; and
6
(c) subject to subsection (5), request the holder of the approved
7
arrangement to give the Secretary, within 14 days after the
8
day the notice is given, a written statement showing cause
9
why the proposed variation should not be made; and
10
(d) include a statement setting out the holder's right to seek
11
review of a decision to make the proposed variation.
12
(5) A notice under subsection (3) is not required to include the request
13
referred to in paragraph (4)(c) if the Secretary reasonably believes
14
that the grounds for the proposed variation are serious and urgent.
15
166 Variations required by the Secretary
16
(1) If, under paragraph 165(1)(a), the Secretary requires the holder of
17
an approved arrangement to vary the approved arrangement, the
18
Secretary must give the holder a written notice (a
variation notice
)
19
requiring the holder:
20
(a) to vary the approved arrangement as specified in the variation
21
notice; and
22
(b) to give the varied approved arrangement to the Secretary, or
23
otherwise make the varied approved arrangement available to
24
the Secretary for evaluation, by the date specified in the
25
variation notice.
26
Note:
If the holder does not comply with the variation notice, the Secretary
27
may suspend or revoke the approved arrangement (see paragraphs
28
171(1)(k) and 179(1)(k)).
29
(2) If the holder complies with the variation notice, the holder is taken
30
to have applied to the Secretary to approve the varied approved
31
arrangement.
32
Approved arrangements
Chapter 5
Variation of approved arrangement
Part 4
Variation required or made by Secretary
Division 2
Section 166
No. , 2019
Export Control Bill 2019
189
Secretary must decide whether to approve varied approved
1
arrangement
2
(3) If the varied approved arrangement is given to the Secretary, or
3
otherwise made available to the Secretary, as required by the
4
variation notice, the Secretary must decide:
5
(a) to approve the varied approved arrangement; or
6
(b) to refuse to approve the varied approved arrangement.
7
(4) The Secretary may approve the varied approved arrangement if the
8
Secretary is satisfied, having regard to any matter that the
9
Secretary considers relevant, that all the variations specified in the
10
variation notice have been made.
11
Note 1:
See section 379 for matters relating to dealing with applications.
12
Note 2:
If the Secretary does not make a decision in relation to the application
13
within the consideration period for the application, the Secretary is
14
taken to have refused the application at the end of that period (see
15
subsection 379(2)).
16
Note 3:
A decision to refuse to approve a varied approved arrangement is a
17
reviewable decision (see Part 2 of Chapter 11) and the Secretary must
18
give the holder of the approved arrangement written notice of the
19
decision (see section 382).
20
(5) The Secretary may approve the varied approved arrangement
21
subject to any conditions the Secretary considers appropriate.
22
Note:
A decision to approve a varied approved arrangement subject to
23
conditions is a reviewable decision (see Part 2 of Chapter 11).
24
Notice of approval of varied approved arrangement
25
(6) If the Secretary approves the varied approved arrangement, the
26
Secretary must give the holder of the varied approved arrangement
27
a written notice stating:
28
(a) the date the varied approved arrangement takes effect; and
29
(b) any other information prescribed by the rules.
30
Note:
The varied approved arrangement remains in force as provided by
31
section 154.
32
Chapter 5
Approved arrangements
Part 4
Variation of approved arrangement
Division 2
Variation required or made by Secretary
Section 167
190
Export Control Bill 2019
No. , 2019
When varied approved arrangement takes effect
1
(7) If the holder of the approved arrangement was given a notice (a
2
show cause notice
) under subsection 165(3) that included the
3
request referred to in paragraph 165(4)(c), the varied approved
4
arrangement must not take effect before the earlier of the
5
following:
6
(a) the day after any response to the request is received by the
7
Secretary;
8
(b) the end of 14 days after the show cause notice was given.
9
Note:
The varied approved arrangement remains in force as provided by
10
section 154.
11
167 Varied approved arrangement must not be implemented unless
12
approved etc.
13
If the holder of an approved arrangement has been given a
14
variation notice in relation to the approved arrangement under
15
subsection 166(1), the holder must not implement a variation
16
specified in the variation notice unless:
17
(a) the varied approved arrangement has been approved under
18
paragraph 166(3)(a); and
19
(b) the Secretary has given the holder written notice of the
20
approval under subsection 166(6).
21
Note:
If the holder contravenes this section, the Secretary may:
22
(a) suspend or revoke the approved arrangement (see paragraphs
23
171(1)(k) and 179(1)(k)); or
24
(b) refuse to issue a government certificate in relation to a kind of
25
goods covered by the approved arrangement (see section 67) or
26
refuse to issue an export permit for the goods
(see section 225).
27
168 Notice of variations made by the Secretary
28
(1) If the Secretary makes a variation in relation to an approved
29
arrangement under paragraph 165(1)(b), (c), (d) or (e), the
30
Secretary must give the holder of the approved arrangement
31
written notice of the variation.
32
(2) The notice must state the following:
33
Approved arrangements
Chapter 5
Variation of approved arrangement
Part 4
Variation required or made by Secretary
Division 2
Section 168
No. , 2019
Export Control Bill 2019
191
(a) if the variation is of the conditions of the approved
1
arrangement--the varied conditions and any new conditions;
2
(b) if the variation affects the period of effect of the approved
3
arrangement:
4
(i) the expiry date for the approved arrangement under
5
paragraph 154(4)(a) or (b) (whichever applies); or
6
(ii) if there is no expiry date for the approved
7
arrangement--that the approved arrangement remains in
8
force unless it is revoked;
9
(c) the date the variation takes effect;
10
(d) any other information prescribed by the rules.
11
(3) If the holder of the approved arrangement was given a notice (a
12
show cause notice
) under subsection 165(3) that included the
13
request referred to in paragraph 165(4)(c), the variation must not
14
take effect before the earlier of the following:
15
(a) the day after any response to the request is received by the
16
Secretary;
17
(b) the end of 14 days after the show cause notice was given.
18
Note:
The varied approved arrangement remains in force as provided by
19
section 154.
20
Chapter 5
Approved arrangements
Part 5
Suspension of approved arrangement
Division 1
Suspension requested by holder
Section 169
192
Export Control Bill 2019
No. , 2019
Part 5--Suspension of approved arrangement
1
Division 1--Suspension requested by holder
2
169 Holder may request suspension
3
(1) Subject to subsection (2), the holder of an approved arrangement
4
may request the Secretary to suspend the approved arrangement or
5
a part of the approved arrangement.
6
Note:
A request might be made under this subsection if, for example, the
7
holder of the approved arrangement does not have personnel with
8
appropriate qualifications or expertise to carry out a particular kind of
9
export operations in relation to a kind of prescribed goods in
10
accordance with the approved arrangement.
11
(2) A request may be made under subsection (1) only in the
12
circumstances prescribed by the rules.
13
(3) A request under subsection (1) may relate to more than one kind of
14
export operations or more than one kind of prescribed goods and, if
15
applicable, more than one place to which goods may be exported.
16
(4) A request under subsection (1) must:
17
(a) be in writing; and
18
(b) specify whether the whole or a specified part of the approved
19
arrangement is to be suspended; and
20
(c) state each kind of export operations and each kind of
21
prescribed goods and, if applicable, each place in relation to
22
which the approved arrangement is to be suspended; and
23
(d) specify the reason for the suspension; and
24
(e) include any other information prescribed by the rules.
25
(5) If the Secretary receives a request from the holder of an approved
26
arrangement under subsection (1) to suspend the whole or a part of
27
the approved arrangement, the Secretary must, by written notice to
28
the holder, suspend the approved arrangement, or the part of the
29
approved arrangement, as requested, with effect on the day
30
specified in the notice.
31
Approved arrangements
Chapter 5
Suspension of approved arrangement
Part 5
Suspension requested by holder
Division 1
Section 170
No. , 2019
Export Control Bill 2019
193
170 Request to revoke suspension
1
(1) If an approved arrangement, or a part of an approved arrangement,
2
is suspended under section 169, the holder of the approved
3
arrangement may request the Secretary to revoke the suspension.
4
(2) A request under subsection (1) must:
5
(a) be in writing; and
6
(b) state the reason for the request; and
7
(c) include any other information prescribed by the rules.
8
(3) If the Secretary receives a request under subsection (1) from the
9
holder of an approved arrangement, the Secretary may:
10
(a) if the Secretary is satisfied that the reason for the suspension
11
no longer exists and there is no reason why the suspension
12
should not be revoked--revoke the suspension by written
13
notice to the holder; or
14
(b) in any other case:
15
(i) suspend the approved arrangement, or a part of the
16
approved arrangement, under Division 2 of this Part; or
17
(ii) revoke the approved arrangement under Division 2 of
18
Part 6.
19
Note:
A decision to suspend the approved arrangement, or a part of the
20
approved arrangement, or to revoke the approved arrangement is a
21
reviewable decision (see Part 2 of Chapter 11).
22
Chapter 5
Approved arrangements
Part 5
Suspension of approved arrangement
Division 2
Suspension by Secretary
Section 171
194
Export Control Bill 2019
No. , 2019
Division 2--Suspension by Secretary
1
171 Grounds for suspension--general
2
(1) The Secretary may suspend an approved arrangement, or a part of
3
an approved arrangement, if the Secretary reasonably believes any
4
of the following:
5
(a) the integrity of a kind of prescribed goods covered by the
6
approved arrangement cannot be ensured;
7
(b) if the holder of the approved arrangement is a kind of person
8
who is required by rules made for the purposes of section 373
9
to be a fit and proper person for the purposes of this
10
Chapter--the holder is not a fit and proper person;
11
(c) a requirement referred to in subsection 151(2) is no longer
12
met;
13
(d) export operations covered by the approved arrangement have
14
not been, or are not being, carried out in accordance with the
15
approved arrangement, or a condition of the approved
16
arrangement has been, or is being, contravened;
17
(e) circumstances relating to any of the export operations or
18
goods covered by the approved arrangement have changed;
19
(f) carrying out a kind of export operations in relation to a kind
20
of prescribed goods in accordance with the approved
21
arrangement will no longer ensure:
22
(i) compliance with the requirements of this Act in relation
23
to those export operations and goods; and
24
(ii) that importing country requirements relating to those
25
export operations and goods are met;
26
(g) export operations have not been carried out for a continuous
27
period of 12 months or more in relation to some or all of the
28
goods covered by the approved arrangement;
29
(h) the holder of the approved arrangement:
30
(i) failed to comply with a direction given to the holder by
31
an authorised officer or the Secretary; or
32
(ii) failed to comply with a request by an authorised officer
33
to provide information or a document; or
34
Approved arrangements
Chapter 5
Suspension of approved arrangement
Part 5
Suspension by Secretary
Division 2
Section 171
No. , 2019
Export Control Bill 2019
195
(iii) failed to provide facilities and assistance to an auditor as
1
required by section 271; or
2
(iv) failed to comply with a request made by an auditor
3
under section 272;
4
(i) the holder of the approved arrangement has engaged in
5
conduct that:
6
(i) intimidated a person performing functions or exercising
7
powers under this Act; or
8
(ii) hindered or prevented a person from performing
9
functions or exercising powers under this Act;
10
(j) the holder of the approved arrangement, or a person who
11
manages or controls or carries out export operations covered
12
by the approved arrangement:
13
(i) made a false, misleading or incomplete statement in an
14
application under this Chapter; or
15
(ii) gave false, misleading or incomplete information or
16
documents to the Secretary or to another person
17
performing functions or exercising powers under this
18
Act; or
19
(iii) gave false, misleading or incomplete information or
20
documents to the Secretary or the Department under a
21
prescribed agriculture law;
22
(k) the holder of the approved arrangement has contravened a
23
requirement of this Act in relation to the approved
24
arrangement;
25
(l) a ground prescribed by the rules exists.
26
Note 1:
A suspension must not be for more than 12 months (see section 174).
27
Note 2:
A decision to suspend an approved arrangement, or a part of an
28
approved arrangement, under this section is a reviewable decision (see
29
Part 2 of Chapter 11).
30
Notice of proposed suspension
31
(2) The Secretary must not suspend an approved arrangement, or a part
32
of an approved arrangement, under subsection (1) unless the
33
Secretary has given a written notice to the holder of the approved
34
arrangement in accordance with subsection (3).
35
Chapter 5
Approved arrangements
Part 5
Suspension of approved arrangement
Division 2
Suspension by Secretary
Section 172
196
Export Control Bill 2019
No. , 2019
(3) A notice under subsection (2) must:
1
(a) specify whether the whole of the approved arrangement is
2
proposed to be suspended, or whether a part of the approved
3
arrangement is proposed to be suspended and, if so, which
4
part; and
5
(b) specify the grounds for the proposed suspension; and
6
(c) subject to subsection (4), request the holder of the approved
7
arrangement to give the Secretary, within 14 days after the
8
day the notice is given, a written statement showing cause
9
why the approved arrangement, or the part of the approved
10
arrangement, should not be suspended as proposed; and
11
(d) include a statement setting out the holder's right to seek
12
review of a decision to suspend the approved arrangement, or
13
the part of the approved arrangement, as proposed.
14
(4) A notice under subsection (2) is not required to include the request
15
referred to in paragraph (3)(c) if the Secretary reasonably believes
16
that the grounds for the suspension are serious and urgent.
17
172 Grounds for suspension--overdue relevant Commonwealth
18
liability
19
Notice of proposed suspension
20
(1) The Secretary may suspend an approved arrangement for a period
21
if:
22
(a) a relevant Commonwealth liability of the holder of the
23
approved arrangement (the
debtor
) is more than 30 days
24
overdue; and
25
(b) the Secretary has given a written notice to the debtor in
26
accordance with subsection (2); and
27
(c) within 8 days after the notice is given:
28
(i) the relevant Commonwealth liability has not been paid;
29
or
30
(ii) the debtor has not entered into an arrangement with the
31
Secretary to pay the relevant Commonwealth liability.
32
Note 1:
A suspension must not be for more than 12 months (see section 174).
33
Approved arrangements
Chapter 5
Suspension of approved arrangement
Part 5
Suspension by Secretary
Division 2
Section 173
No. , 2019
Export Control Bill 2019
197
Note 2:
A decision to suspend an approved arrangement under this section is a
1
reviewable decision (see Part 2 of Chapter 11).
2
Note 3:
If the Secretary suspends an approved arrangement under this section,
3
the Secretary may revoke the approved arrangement in certain
4
circumstances (see section 180).
5
(2) A notice under subsection (1) must:
6
(a) state that a relevant Commonwealth liability of the debtor is
7
more than 30 days overdue; and
8
(b) state that the Secretary may suspend the debtor's approved
9
arrangement if, within 8 days after the notice is given:
10
(i) the relevant Commonwealth liability is not paid; or
11
(ii) the debtor has not entered into an arrangement with the
12
Secretary to pay the relevant Commonwealth liability;
13
and
14
(c) include a statement setting out the debtor's right to seek
15
review of a decision to suspend the approved arrangement.
16
Secretary may direct that activities not be carried out
17
(3) If the Secretary suspends the debtor's approved arrangement under
18
subsection (1), the Secretary may refuse to carry out, or direct a
19
person not to carry out, specified activities or kinds of activities in
20
relation to the debtor under this Act until the relevant
21
Commonwealth liability has been paid.
22
Note:
See also section 309 (general provisions relating to directions).
23
Action under this section does not affect liability to pay relevant
24
Commonwealth liability
25
(4) Action by the Secretary under this section does not affect the
26
liability of the debtor to pay the relevant Commonwealth liability.
27
173 Notice of suspension
28
(1) If the Secretary decides to suspend an approved arrangement, or a
29
part of an approved arrangement, under this Division, the Secretary
30
must give the holder of the approved arrangement a written notice
31
stating the following:
32
Chapter 5
Approved arrangements
Part 5
Suspension of approved arrangement
Division 2
Suspension by Secretary
Section 174
198
Export Control Bill 2019
No. , 2019
(a) that the approved arrangement, or the part of the approved
1
arrangement, is to be suspended;
2
(b) the reasons for the suspension;
3
(c) the date the suspension is to start;
4
(d) the period of the suspension.
5
Note:
The notice must also state the matters referred to in section 382.
6
(2) If the holder of the approved arrangement was given a notice (a
7
show cause notice
) under subsection 171(2) that included the
8
request referred to in paragraph 171(3)(c), the suspension must not
9
start before the earlier of the following:
10
(a) the day after any response to the request is received by the
11
Secretary;
12
(b) the end of 14 days after the show cause notice was given.
13
174 Period of suspension
14
(1) A suspension of an approved arrangement, or a part of an approved
15
arrangement, under this Division must not be for more than 12
16
months.
17
(2) The Secretary may vary the period of a suspension under this
18
Division by written notice to the holder of the approved
19
arrangement. However, the total period of the suspension must not
20
be more than 12 months.
21
Note:
A decision to extend the period of a suspension is a reviewable
22
decision (see Part 2 of Chapter 11).
23
175 Revocation of suspension
24
The Secretary may revoke a suspension of an approved
25
arrangement, or a part of an approved arrangement, under this
26
Division by written notice to the holder of the approved
27
arrangement.
28
Approved arrangements
Chapter 5
Suspension of approved arrangement
Part 5
Other provisions
Division 3
Section 176
No. , 2019
Export Control Bill 2019
199
Division 3--Other provisions
1
176 Effect of suspension
2
(1) If an approved arrangement, or a part of an approved arrangement,
3
is suspended under Division 1 or 2:
4
(a) the approved arrangement remains in force while it is
5
suspended; and
6
(b) subject to rules made for the purposes of subsection (2), the
7
requirements of this Act in relation to the approved
8
arrangement (including the conditions of the approved
9
arrangement) must be complied with while the approved
10
arrangement, or the part of the approved arrangement, is
11
suspended.
12
(2) The rules may prescribe requirements of this Act (including
13
conditions of an approved arrangement) that are not required to be
14
complied with during any period when the approved arrangement,
15
or a part of the approved arrangement, is suspended.
16
177 Export operations must not be carried out while approved
17
arrangement suspended
18
(1) The holder of an approved arrangement contravenes this subsection
19
if:
20
(a) the holder was given a notice of suspension of the whole or a
21
part of the approved arrangement under subsection 169(5) or
22
173(1); and
23
(b) export operations in relation to which the approved
24
arrangement was suspended were carried out under the
25
approved arrangement while it was suspended.
26
Note:
The physical elements of an offence against subsection (2) are set out
27
in this subsection (see section 370).
28
Fault-based offence
29
(2) The holder of an approved arrangement commits an offence if the
30
holder contravenes subsection (1).
31
Chapter 5
Approved arrangements
Part 5
Suspension of approved arrangement
Division 3
Other provisions
Section 177
200
Export Control Bill 2019
No. , 2019
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
1
Civil penalty provision
2
(3) The holder of an approved arrangement is liable to a civil penalty if
3
the holder contravenes subsection (1).
4
Civil penalty:
240 penalty units.
5
Approved arrangements
Chapter 5
Revocation of approved arrangement
Part 6
Revocation requested by holder
Division 1
Section 178
No. , 2019
Export Control Bill 2019
201
Part 6--Revocation of approved arrangement
1
Division 1--Revocation requested by holder
2
178 Holder may request revocation
3
(1) The holder of an approved arrangement (including an approved
4
arrangement that is suspended, or a part of which is suspended,
5
under Part 5) may request the Secretary to revoke the approved
6
arrangement.
7
Note:
If the holder does not wish to revoke the approved arrangement for all
8
purposes, the holder may apply to vary the approved arrangement
9
under Subdivision B of Division 1 of Part 4.
10
(2) A request under subsection (1) must:
11
(a) be in writing; and
12
(b) include the information (if any) prescribed by the rules.
13
(3) If the Secretary receives a request under subsection (1) to revoke
14
an approved arrangement, the Secretary must, by written notice to
15
the holder of the approved arrangement, revoke the approved
16
arrangement with effect on the day specified in the notice.
17
(4) Subsection (3) does not apply if, before the request under
18
subsection (1) was made, the Secretary:
19
(a) had given the holder of the approved arrangement a notice
20
under subsection 179(2) in relation to the approved
21
arrangement; and
22
(b) had not decided whether to revoke the approved arrangement
23
or not.
24
Chapter 5
Approved arrangements
Part 6
Revocation of approved arrangement
Division 2
Revocation by Secretary
Section 179
202
Export Control Bill 2019
No. , 2019
Division 2--Revocation by Secretary
1
179 Grounds for revocation--general
2
(1) The Secretary may revoke an approved arrangement (including an
3
approved arrangement that is suspended, or a part of which is
4
suspended, under Part 5) if the Secretary reasonably believes any
5
of the following:
6
(a) the integrity of a kind of prescribed goods covered by the
7
approved arrangement cannot be ensured;
8
(b) if the holder of the approved arrangement is a kind of person
9
who is required by rules made for the purposes of section 373
10
to be a fit and proper person for the purposes of this
11
Chapter--the holder is not a fit and proper person;
12
(c) a requirement referred to in subsection 151(2) is no longer
13
met;
14
(d) export operations covered by the approved arrangement have
15
not been, or are not being, carried out in accordance with the
16
approved arrangement, or a condition of the approved
17
arrangement has been, or is being, contravened;
18
(e) circumstances relating to any of the export operations or
19
goods covered by the approved arrangement have changed;
20
(f) carrying out a kind of export operations in relation to a kind
21
of prescribed goods in accordance with the approved
22
arrangement will no longer ensure:
23
(i) compliance with the requirements of this Act in relation
24
to those export operations and goods; and
25
(ii) that importing country requirements relating to those
26
export operations and goods are met;
27
(g) export operations have not been carried out for a continuous
28
period of 12 months or more in relation to some or all of the
29
prescribed goods covered by the approved arrangement;
30
(h) the holder of the approved arrangement:
31
(i) failed to comply with a direction given to the holder by
32
an authorised officer or the Secretary; or
33
Approved arrangements
Chapter 5
Revocation of approved arrangement
Part 6
Revocation by Secretary
Division 2
Section 179
No. , 2019
Export Control Bill 2019
203
(ii) failed to comply with a request by an authorised officer
1
to provide information or a document; or
2
(iii) failed to provide facilities and assistance to an auditor as
3
required by section 271; or
4
(iv) failed to comply with a request made by an auditor
5
under section 272;
6
(i) the holder of the approved arrangement has engaged in
7
conduct that:
8
(i) intimidated a person performing functions or exercising
9
powers under this Act;
10
(ii) hindered or prevented a person from performing
11
functions or exercising powers under this Act;
12
(j) the holder of the approved arrangement, or a person who
13
manages or controls or carries out export operations covered
14
by the approved arrangement:
15
(i) made a false, misleading or incomplete statement in an
16
application under this Chapter; or
17
(ii) gave false, misleading or incomplete information or
18
documents to the Secretary or to another person
19
performing functions or exercising powers under this
20
Act; or
21
(iii) gave false, misleading or incomplete information or
22
documents to the Secretary or the Department under a
23
prescribed agriculture law;
24
(k) the holder of the approved arrangement has contravened a
25
requirement of this Act in relation to the approved
26
arrangement;
27
(l) a ground prescribed by the rules exists.
28
Note:
A decision to revoke an approved arrangement under this section is a
29
reviewable decision (see Part 2 of Chapter 11).
30
Notice of proposed revocation
31
(2) The Secretary must not revoke an approved arrangement under
32
subsection (1) unless the Secretary has given a written notice to the
33
holder of the approved arrangement in accordance with
34
subsection (3).
35
Chapter 5
Approved arrangements
Part 6
Revocation of approved arrangement
Division 2
Revocation by Secretary
Section 180
204
Export Control Bill 2019
No. , 2019
(3) A notice under subsection (2) must:
1
(a) specify the grounds for the proposed revocation; and
2
(b) subject to subsection (4), request the holder of the approved
3
arrangement to give the Secretary, within 14 days after the
4
day the notice is given, a written statement showing cause
5
why the approved arrangement should not be revoked; and
6
(c) include a statement setting out the holder's right to seek
7
review of a decision to revoke the approved arrangement.
8
(4) A notice under subsection (2) is not required to include the request
9
referred to in paragraph (3)(b) if the Secretary reasonably believes
10
that the grounds for the revocation are serious and urgent.
11
180 Grounds for revocation--overdue relevant Commonwealth
12
liability
13
(1) The Secretary may revoke an approved arrangement if:
14
(a) the approved arrangement is suspended under
15
subsection 172(1) for non-payment of a relevant
16
Commonwealth liability; and
17
(b) within 90 days after the start of the suspension:
18
(i) the relevant Commonwealth liability had not been paid;
19
or
20
(ii) the person (the
debtor
) who is liable to pay the relevant
21
Commonwealth liability had not entered into an
22
arrangement with the Secretary to pay the relevant
23
Commonwealth liability.
24
Note:
A decision to revoke an approved arrangement under this section is a
25
reviewable decision (see Part 2 of Chapter 11).
26
Secretary may direct that activities not be carried out
27
(2) If the Secretary revokes an approved arrangement under
28
subsection (1), the Secretary may refuse to carry out, or direct a
29
person not to carry out, specified activities or kinds of activities in
30
relation to the debtor under this Act until the relevant
31
Commonwealth liability has been paid.
32
Note:
See also section 309 (general provisions relating to directions).
33
Approved arrangements
Chapter 5
Revocation of approved arrangement
Part 6
Revocation by Secretary
Division 2
Section 181
No. , 2019
Export Control Bill 2019
205
Action under this section does not affect liability to pay relevant
1
Commonwealth liability
2
(3) Action by the Secretary under this section does not affect the
3
liability of the debtor to pay the relevant Commonwealth liability.
4
181 Notice of revocation
5
(1) If the Secretary decides to revoke an approved arrangement under
6
this Division, the Secretary must give the holder of the approved
7
arrangement a written notice stating the following:
8
(a) that the approved arrangement is to be revoked;
9
(b) the reasons for the revocation;
10
(c) the date the revocation is to take effect.
11
Note:
The notice must also state the matters referred to in section 382.
12
(2) If the holder of the approved arrangement was given a notice (a
13
show cause notice
) under subsection 179(2) that included the
14
request referred to in paragraph 179(3)(b), the revocation must not
15
take effect before the earlier of the following:
16
(a) the day after any response to the request is received by the
17
Secretary;
18
(b) the end of 14 days after the show cause notice was given.
19
Chapter 5
Approved arrangements
Part 6
Revocation of approved arrangement
Division 3
Other provisions
Section 182
206
Export Control Bill 2019
No. , 2019
Division 3--Other provisions
1
182 Export operations must not be carried out after approved
2
arrangement revoked
3
(1) A person contravenes this subsection if:
4
(a) the person was the holder of an approved arrangement; and
5
(b) the person was given notice of revocation of the approved
6
arrangement under subsection 178(3) or 181(1); and
7
(c) export operations that were covered by the approved
8
arrangement were carried out after the revocation took effect.
9
Note:
The physical elements of an offence against subsection (2) are set out
10
in this subsection (see section 370).
11
Fault-based offence
12
(2) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
15
Civil penalty provision
16
(3) A person is liable to a civil penalty if the person contravenes
17
subsection (1).
18
Civil penalty:
240 penalty units.
19
183 Secretary may require action to be taken after approved
20
arrangement revoked
21
(1) This section applies if:
22
(a) a person was given notice of revocation of an approved
23
arrangement under subsection 178(3) or 181(1); or
24
(b) the approved arrangement was revoked under Division 1 or
25
2.
26
(2) The Secretary may, in writing, direct the person to take specified
27
action, within a specified period after the approved arrangement is
28
Approved arrangements
Chapter 5
Revocation of approved arrangement
Part 6
Other provisions
Division 3
Section 183
No. , 2019
Export Control Bill 2019
207
revoked, in relation to the export operations and goods that were
1
covered by the approved arrangement. The action must be action
2
that is necessary for the purpose of achieving one or more objects
3
of this Act.
4
(3) A direction to a person under subsection (2) must state that, if the
5
person fails to comply with the direction, the person could commit
6
an offence or be liable to a civil penalty.
7
Note:
See also section 309 (general provisions relating to directions).
8
(4) A person who is given a direction under subsection (2) must
9
comply with the direction.
10
Fault-based offence
11
(5) A person commits an offence if:
12
(a) the person is given a direction under subsection (2); and
13
(b) the person engages in conduct; and
14
(c) the conduct contravenes the direction.
15
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
16
Civil penalty provision
17
(6) A person is liable to a civil penalty if the person contravenes
18
subsection (4).
19
Civil penalty:
240 penalty units.
20
Chapter 5
Approved arrangements
Part 7
Obligations of holders of approved arrangements
Section 184
208
Export Control Bill 2019
No. , 2019
Part 7--Obligations of holders of approved
1
arrangements
2
3
184 Conditions of approved arrangement must not be contravened
4
Approved arrangement that is not suspended
5
(1) A person contravenes this subsection if:
6
(a) the person is the holder of an approved arrangement; and
7
(b) the approved arrangement, or a part of the approved
8
arrangement, is not suspended under Part 5; and
9
(c) a condition of the approved arrangement is contravened.
10
Note:
The physical elements of an offence against subsection (2) are set out
11
in this subsection (see section 370).
12
Fault-based offence
13
(2) A person commits an offence if the person contravenes
14
subsection (1).
15
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
16
(3) For the purposes of subsection (2), strict liability applies to
17
paragraph (1)(c).
18
Civil penalty provision
19
(4) A person is liable to a civil penalty if the person contravenes
20
subsection (1).
21
Civil penalty:
960 penalty units.
22
Approved arrangement that is suspended
23
(5) A person contravenes this subsection if:
24
(a) the person is the holder of an approved arrangement; and
25
(b) the approved arrangement, or a part of the approved
26
arrangement, is suspended under Part 5; and
27
Approved arrangements
Chapter 5
Obligations of holders of approved arrangements
Part 7
Section 185
No. , 2019
Export Control Bill 2019
209
(c) a condition of the approved arrangement is contravened; and
1
(d) the condition is required to be complied with during the
2
period of the suspension.
3
Note:
The physical elements of an offence against subsection (6) are set out
4
in this subsection (see section 370).
5
Fault-based offence
6
(6) A person commits an offence if the person contravenes
7
subsection (5).
8
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
9
(7) For the purposes of subsection (6), strict liability applies to
10
paragraphs (5)(c) and (d).
11
Civil penalty provision
12
(8) A person is liable to a civil penalty if the person contravenes
13
subsection (5).
14
Civil penalty:
960 penalty units.
15
185 Additional or corrected information in relation to application to
16
approve proposed arrangement etc.
17
(1) The holder of an approved arrangement must comply with
18
subsection (2) if:
19
(a) the holder becomes aware that information included in an
20
application made by the holder under this Chapter, or
21
information or a document given to the Secretary in relation
22
to such an application, was incomplete or incorrect; or
23
(b) a change prescribed by the rules occurs.
24
(2) The holder of the approved arrangement must, as soon as
25
practicable, give the Secretary additional or corrected information,
26
to the extent that it is relevant to assessing whether:
27
(a) the requirements of this Act in relation to a matter covered by
28
the approved arrangement have been, are being, or will be
29
complied with; or
30
Chapter 5
Approved arrangements
Part 7
Obligations of holders of approved arrangements
Section 186
210
Export Control Bill 2019
No. , 2019
(b) importing country requirements relating to a matter covered
1
by the approved arrangement have been, are being, or will be
2
met.
3
Note 1:
A person may commit an offence or be liable to a civil penalty if the
4
person makes a false or misleading statement in an application or
5
provides false or misleading information or documents (see
6
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
7
sections 367, 368 and 369 of this Act).
8
Note 2:
The Secretary may suspend or revoke the approved arrangement if the
9
holder fails to comply with this subsection (see paragraphs 171(1)(k)
10
and 179(1)(k)).
11
Note 3:
This section is not subject to the privilege against self-incrimination
12
(see section 426).
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if:
15
(a) the person is required to give information to the Secretary
16
under subsection (2); and
17
(b) the person fails to comply with the requirement.
18
Civil penalty:
60 penalty units.
19
186 Notice of changes to holder of approved arrangement
20
(1) The holder of an approved arrangement must notify the Secretary,
21
in writing, as soon as practicable after any of the following events
22
occurs:
23
(a) there is a change in the holder's business structure;
24
(b) if the holder is an individual--the individual enters into a
25
personal insolvency agreement under Part X of the
26
Bankruptcy Act 1966
;
27
(c) if the holder is a corporation--the corporation:
28
(i) enters into administration (within the meaning of
29
section 435C of the
Corporations Act 2001
); or
30
(ii) is to be wound up (whether by a court or voluntarily);
31
(d) there is a change in the trading name, business address or
32
contact details of the holder;
33
(e) any other event prescribed by the rules.
34
Approved arrangements
Chapter 5
Obligations of holders of approved arrangements
Part 7
Section 187
No. , 2019
Export Control Bill 2019
211
Example: For the purposes of paragraph (a), each of the following would be a
1
change in the holder's business structure:
2
(a) a change in a person who manages or controls export operations
3
covered by the approved arrangement;
4
(b) if the holder is a partnership--a change in the membership of the
5
partnership.
6
Note:
The Secretary may suspend or revoke the approved arrangement if:
7
(a) in certain cases, the holder is not a fit and proper person (see
8
paragraphs 171(1)(b) and 179(1)(b)); or
9
(b) the holder fails to comply with this section (see paragraphs
10
171(1)(k) and 179(1)(k)).
11
Civil penalty provision
12
(2) A person is liable to a civil penalty if:
13
(a) the person is required to notify the Secretary of an event in
14
accordance with subsection (1); and
15
(b) the person fails to comply with the requirement.
16
Civil penalty:
60 penalty units.
17
187 Notification of conviction of serious offence
18
(1) This section applies to the following persons:
19
(a) an applicant for approval of a proposed arrangement under
20
section 150, and any other person who is to manage or
21
control or carry out export operations in accordance with the
22
proposed arrangement;
23
(b) the holder of an approved arrangement, and any other person
24
who manages or controls or carries out export operations
25
covered by the approved arrangement;
26
if the person is not a kind of person who is required by rules made
27
for the purposes of section 373 to be a fit and proper person for the
28
purposes of this Chapter.
29
(2) If a person to whom this section applies is convicted of an offence
30
against, or ordered to pay a pecuniary penalty under, any
31
Australian law for a contravention involving fraud or dishonesty,
32
the person must notify the Secretary, in writing, of the conviction
33
or order as soon as practicable after the person is convicted or the
34
order is made.
35
Chapter 5
Approved arrangements
Part 7
Obligations of holders of approved arrangements
Section 188
212
Export Control Bill 2019
No. , 2019
Note 1:
If a person referred to in paragraph (1)(a) or (b) is a kind of person
1
who is required by rules made for the purposes of section 373 to be a
2
fit and proper person for the purposes of this Chapter, the person is
3
required to notify the Secretary of certain matters under
4
subsection 374(5).
5
Note 2:
If this section applies to the holder of an approved arrangement and
6
the holder fails to comply with this subsection, the Secretary may
7
suspend or revoke the approved arrangement (see paragraphs
8
171(1)(k) and 179(1)(k)).
9
Civil penalty provision
10
(3) A person is liable to a civil penalty if:
11
(a) the person is required to notify the Secretary of a conviction
12
or order under subsection (2); and
13
(b) the person fails to comply with the requirement.
14
Civil penalty:
60 penalty units.
15
188 Notice of person ceasing to operate business etc. covered by
16
approved arrangement
17
(1) If the person (the
former holder
) who was the holder of an
18
approved arrangement ceases:
19
(a) to operate the business that carries out export operations
20
covered by the approved arrangement; or
21
(b) to manage or control export operations covered by the
22
approved arrangement;
23
the former holder must, as soon as practicable after so ceasing,
24
notify the Secretary, in writing, of that fact. The notice must also
25
include contact details for the former holder.
26
(2) The approved arrangement is taken to have been revoked at the
27
earlier of the following:
28
(a) the end of the day a notice under subsection (1) is received
29
by the Secretary;
30
(b) the end of the seventh day after the day the former holder
31
ceased:
32
(i) to operate the business that carries out export operations
33
covered by the approved arrangement; or
34
Approved arrangements
Chapter 5
Obligations of holders of approved arrangements
Part 7
Section 188
No. , 2019
Export Control Bill 2019
213
(ii) to manage or control export operations covered by the
1
approved arrangement.
2
Civil penalty provision
3
(3) A person is liable to a civil penalty if:
4
(a) the person is required to notify the Secretary under
5
subsection (1); and
6
(b) the person fails to comply with the requirement.
7
Civil penalty:
60 penalty units.
8
Chapter 6
Export licences
Part 1
Introduction
Section 189
214
Export Control Bill 2019
No. , 2019
Chapter 6--Export licences
1
Part 1--Introduction
2
3
189 Simplified outline of this Chapter
4
The Secretary may, on application by a person, grant the person an
5
export licence to carry out a kind of export operations in relation to
6
a kind of prescribed goods.
7
An export licence may be granted to carry out more than one kind
8
of export operations in relation to more than one kind of prescribed
9
goods for export to one or more places.
10
An export licence is subject to certain conditions.
11
An export licence may remain in force indefinitely or may cease to
12
be in force on an expiry date.
13
If there is an expiry date for an export licence, the export licence
14
may be renewed.
15
The matters covered by an export licence or the conditions of the
16
export licence may be varied.
17
An export licence may be suspended wholly or in part, and may be
18
revoked.
19
A show cause notice must be given to the holder of an export
20
licence before the licence may be varied, suspended or revoked
21
(except in serious and urgent cases or if the holder has requested
22
the variation, suspension or revocation).
23
The Secretary may give directions to the holder of an export
24
licence, including prohibiting a kind of export operations being
25
carried out in relation to a kind of prescribed goods in certain
26
circumstances.
27
Export licences
Chapter 6
Introduction
Part 1
Section 189
No. , 2019
Export Control Bill 2019
215
The holder of an export licence must comply with certain
1
obligations.
2
Chapter 6
Export licences
Part 2
Grant of export licence
Section 190
216
Export Control Bill 2019
No. , 2019
Part 2--Grant of export licence
1
2
190 Application for export licence
3
(1) A person may apply to the Secretary for an export licence to carry
4
out a kind of export operations in relation to a kind of prescribed
5
goods.
6
(2) An application:
7
(a) may relate to more than one kind of export operations and
8
more than one kind of prescribed goods; and
9
(b) may, but is not required to, specify one or more places to
10
which the goods are to be exported.
11
Note 1:
The export of a kind of prescribed goods may be prohibited unless the
12
exporter holds an export licence that covers the export of goods of that
13
kind (see section 29 and rules made for the purposes of that section).
14
Note 2:
Section 377 sets out requirements for applications.
15
191 Secretary must decide whether to grant export licence
16
(1) On receiving an application under section 190 for an export
17
licence, the Secretary must decide:
18
(a) to grant the applicant an export licence; or
19
(b) to refuse to grant the applicant an export licence.
20
Note 1:
See section 379 for matters relating to dealing with applications.
21
Note 2:
If the application is for an export licence to carry out more than one
22
kind of export operations in relation to more than one kind of
23
prescribed goods for export to more than one place, the Secretary may
24
decide to grant the applicant an export licence to carry out some or all
25
of those kinds of export operations in relation to some or all of those
26
kinds of goods for export to some or all of those places.
27
Note 3:
If the Secretary does not make a decision in relation to the application
28
within the consideration period for the application, the Secretary is
29
taken to have refused the application at the end of that period (see
30
subsection 379(2)).
31
Note 4:
A decision to refuse to grant an export licence to carry out a kind of
32
export operations in relation to a kind of prescribed goods is a
33
Export licences
Chapter 6
Grant of export licence
Part 2
Section 191
No. , 2019
Export Control Bill 2019
217
reviewable decision (see Part 2 of Chapter 11) and the Secretary must
1
give the applicant written notice of the decision (see section 382).
2
(2) The Secretary may grant the applicant an export licence if the
3
Secretary is satisfied, having regard to any matter that the
4
Secretary considers relevant, that the following requirements are
5
met:
6
(a) if the applicant is a kind of person who is required by rules
7
made for the purposes of section 373 to be a fit and proper
8
person for the purposes of this Chapter--the applicant is a fit
9
and proper person;
10
(b) either:
11
(i) all relevant Commonwealth liabilities of the applicant
12
have been paid or are taken to have been paid; or
13
(ii) if one or more relevant Commonwealth liabilities of the
14
applicant have not been paid or are not taken to have
15
been paid--the non-payment is due to exceptional
16
circumstances;
17
(c) the applicant is, and is likely to continue to be, able to
18
comply with the conditions to which the export licence, if
19
granted, would be subject;
20
(d) any other requirement prescribed by the rules.
21
Note:
For the purposes of paragraph (b), a relevant Commonwealth liability
22
of a person is taken to have been paid in certain circumstances (see
23
section 431).
24
(3) If the Secretary grants the applicant an export licence, the
25
Secretary may, if the Secretary considers it appropriate, set an
26
expiry date for the licence.
27
Note 1:
If there is no expiry date for the export licence, the licence remains in
28
force unless it is revoked (see subsection 194(1)).
29
Note 2:
A decision to set an expiry date for an export licence is a reviewable
30
decision (see Part 2 of Chapter 11).
31
(4) The Secretary may set an expiry date for the export licence under
32
subsection (3) even if rules made for the purposes of
33
subsection 194(5) apply in relation to the licence.
34
Chapter 6
Export licences
Part 2
Grant of export licence
Section 192
218
Export Control Bill 2019
No. , 2019
192 Conditions of export licence
1
(1) An export licence is subject to:
2
(a) the conditions provided by this Act; and
3
(b) the conditions prescribed by the rules (other than any of those
4
conditions that the Secretary decides are not to be conditions
5
of the licence); and
6
(c) any additional conditions that the Secretary considers
7
appropriate and that are specified in the licence.
8
Note 1:
See subsection 222(4) for a condition of an export licence.
9
Note 2:
The holder of an export licence may commit an offence or be liable to
10
a civil penalty if a condition of the licence is contravened (see
11
section 217).
12
Note 3:
An export licence may be suspended or revoked if a condition of the
13
licence is contravened (see sections 205 and 212).
14
Note 4:
A decision to grant an export licence subject to additional conditions
15
is a reviewable decision (see Part 2 of Chapter 11).
16
Note 5:
Part 7 sets out additional obligations of the holder of an export licence.
17
(2) Without limiting paragraph (1)(b), the rules may prescribe
18
conditions in relation to any or all of the following:
19
(a) the holder of the export licence;
20
(b) a kind of export operations;
21
(c) a kind of prescribed goods;
22
(d) importing country requirements relating to a kind of export
23
operations or a kind of prescribed goods.
24
(3) Without limiting paragraph (1)(b) or (c), the rules may prescribe
25
conditions, and the Secretary may impose conditions, that are
26
required to be complied with before or after the export of the goods
27
to which the conditions relate.
28
(4) For the purposes of this Act, conditions to which an export licence
29
is subject under subsection (1) or section 197 are conditions of the
30
licence.
31
193 Matters to be stated in export licence
32
(1) An export licence must:
33
Export licences
Chapter 6
Grant of export licence
Part 2
Section 194
No. , 2019
Export Control Bill 2019
219
(a) be in writing; and
1
(b) be given to the applicant to whom it was granted.
2
(2) An export licence must state the following information:
3
(a) the number allocated to the licence;
4
(b) each kind of export operations and each kind of prescribed
5
goods covered by the licence;
6
(c) if applicable, each place to which a kind of prescribed goods
7
covered by the licence may be exported;
8
(d) the date the licence takes effect;
9
(e) that the licence remains in force indefinitely or the expiry
10
date for the licence;
11
(f) any conditions prescribed by the rules that the Secretary has
12
decided are not to be conditions of the licence;
13
(g) any additional conditions of the licence;
14
(h) any other information prescribed by the rules.
15
194 Period of effect of export licence
16
Export licences that have no expiry date
17
(1) If there is no expiry date for an export licence, the licence remains
18
in force unless it is revoked under Part 6.
19
Export licences that have an expiry date
20
(2) If there is an expiry date for an export licence (including an export
21
licence that has been renewed under Part 3), the licence remains in
22
force until the end of that expiry date unless:
23
(a) the licence is renewed under Part 3 on or before that date; or
24
(b) the licence is revoked under Part 6 on or before that date.
25
(3) There is an expiry date for an export licence if:
26
(a) rules made for the purposes of subsection (5) apply in
27
relation to the export licence; or
28
(b) an expiry date for the export licence set under
29
subsection 191(3) or 196(3) or paragraph 201(1)(c) or (d) is
30
in force in relation to the export licence.
31
Chapter 6
Export licences
Part 2
Grant of export licence
Section 194
220
Export Control Bill 2019
No. , 2019
(4) The
expiry date
for an export licence is:
1
(a) if rules made for the purposes of subsection (5) apply in
2
relation to the export licence and no expiry date set under
3
subsection 191(3) or 196(3) or paragraph 201(1)(c) or (d) is
4
in force in relation to the export licence--the last day of the
5
period prescribed by the rules; or
6
(b) if an expiry date for the export licence set under
7
subsection 191(3) or 196(3) or paragraph 201(1)(c) or (d) is
8
in force in relation to the export licence--that date.
9
Rules may prescribe period of effect of export licence
10
(5) The rules may prescribe the period during which an export licence
11
remains in force. The rules may apply in relation to:
12
(a) export licences generally; or
13
(b) export licences for a kind of export operations in relation to a
14
kind of prescribed goods and, if applicable, a place to which
15
the goods may be exported.
16
Export licences
Chapter 6
Renewal of export licence
Part 3
Section 195
No. , 2019
Export Control Bill 2019
221
Part 3--Renewal of export licence
1
2
195 Application to renew export licence
3
(1) This section applies in relation to an export licence (including a
4
licence that is suspended wholly or in part under Part 5) if there is
5
an expiry date for the licence.
6
Note:
See subsections 194(3) and (4) in relation to the expiry date for an
7
export licence.
8
(2) The holder of the export licence may apply to the Secretary to
9
renew the licence.
10
Note:
Section 377 sets out requirements for applications.
11
(3) An application for renewal:
12
(a) may relate to more than one kind of export operations and
13
more than one kind of prescribed goods; and
14
(b) may, but is not required to, specify one or more places to
15
which the goods are to be exported.
16
(4) An application for renewal must be made:
17
(a) within the period prescribed by the rules; or
18
(b) if the Secretary allows a longer period--within that longer
19
period.
20
(5) If an application to renew an export licence is made after the period
21
applying under subsection (4):
22
(a) the application is taken to be an application for a new export
23
licence; and
24
(b) Part 2 applies in relation to the application; and
25
(c) the other provisions of this Part do not apply in relation to the
26
application.
27
196 Secretary must decide whether to renew export licence
28
(1) On receiving an application under section 195 to renew an export
29
licence, the Secretary must decide:
30
Chapter 6
Export licences
Part 3
Renewal of export licence
Section 196
222
Export Control Bill 2019
No. , 2019
(a) to renew the licence; or
1
(b) to refuse to renew the licence.
2
Note 1:
See section 379 for matters relating to dealing with applications.
3
Note 2:
If the application is to renew the export licence to carry out more than
4
one kind of export operations in relation to more than one kind of
5
prescribed goods for export to more than one place, the Secretary may
6
decide to renew the licence to carry out some or all of those kinds of
7
export operations in relation to some or all of those kinds of goods for
8
export to some or all of those places.
9
Note 3:
If the Secretary does not make a decision in relation to the application
10
within the consideration period for the application, the Secretary is
11
taken to have refused the application at the end of that period (see
12
subsection 379(2)).
13
Note 4:
A decision to refuse to renew an export licence to carry out a kind of
14
export operations in relation to a kind of prescribed goods is a
15
reviewable decision (see Part 2 of Chapter 11) and the Secretary must
16
give the applicant written notice of the decision (see section 382).
17
(2) The Secretary may refuse to renew the export licence if the
18
Secretary is not satisfied, having regard to any matter that the
19
Secretary considers relevant, of one or more of the following:
20
(a) if the holder of the licence is a kind of person who is required
21
by rules made for the purposes of section 373 to be a fit and
22
proper person for the purposes of this Chapter--the holder is
23
a fit and proper person;
24
(b) either:
25
(i) all relevant Commonwealth liabilities of the holder of
26
the licence have been paid or are taken to have been
27
paid; or
28
(ii) if one or more relevant Commonwealth liabilities of the
29
holder have not been paid or are not taken to have been
30
paid--the non-payment is due to exceptional
31
circumstances;
32
(c) the holder of the licence has complied with the requirements
33
of this Act in relation to the export operations and prescribed
34
goods covered by the licence;
35
(d) the conditions of the licence have been, and are being,
36
complied with;
37
(e) any other requirement prescribed by the rules is met.
38
Export licences
Chapter 6
Renewal of export licence
Part 3
Section 197
No. , 2019
Export Control Bill 2019
223
Note:
For the purposes of paragraph (b), a relevant Commonwealth liability
1
of a person is taken to have been paid in certain circumstances (see
2
section 431).
3
(3) If the Secretary renews the export licence, the Secretary may, if the
4
Secretary considers it appropriate, set an expiry date for the
5
licence.
6
Note 1:
If there is no expiry date for the export licence, the licence remains in
7
force unless it is revoked (see subsection 194(1)).
8
Note 2:
A decision to set an expiry date for a renewed export licence is a
9
reviewable decision (see Part 2 of Chapter 11).
10
(4) The Secretary may set an expiry date for the export licence under
11
subsection (3) even if rules made for the purposes of
12
subsection 194(5) apply in relation to the licence.
13
197 Conditions of renewed export licence
14
(1) If the Secretary renews an export licence, the renewed licence is
15
subject to:
16
(a) the conditions provided by this Act; and
17
(b) the conditions prescribed by rules made for the purposes of
18
paragraph 192(1)(b) (other than any of those conditions that
19
the Secretary decides are not to be conditions of the licence);
20
and
21
(c) any additional conditions that the Secretary considers
22
appropriate and that are specified in the licence.
23
Note 1:
See subsection 222(4) for a condition of an export licence.
24
Note 2:
The holder of an export licence may commit an offence or be liable to
25
a civil penalty if a condition of the licence is contravened (see
26
section 217).
27
Note 3:
An export licence may be suspended or revoked if a condition of the
28
licence is contravened (see sections 205 and 212).
29
Note 4:
A decision to renew an export licence subject to additional conditions
30
is a reviewable decision (see Part 2 of Chapter 11).
31
Note 5:
Part 7 sets out additional obligations of the holder of an export licence.
32
(2) Without limiting paragraph (1)(c), the Secretary may impose
33
conditions that are required to be complied with before or after the
34
export of the goods to which the conditions relate.
35
Chapter 6
Export licences
Part 3
Renewal of export licence
Section 198
224
Export Control Bill 2019
No. , 2019
198 Matters to be stated in renewed export licence
1
If an export licence is renewed, the Secretary must give the
2
applicant a new export licence stating the information referred to in
3
subsection 193(2).
4
Export licences
Chapter 6
Variation of export licence
Part 4
Application by holder
Division 1
Section 199
No. , 2019
Export Control Bill 2019
225
Part 4--Variation of export licence
1
Division 1--Application by holder
2
199 Application by holder for variation of export licence
3
(1) The holder of an export licence may apply to the Secretary:
4
(a) to vary the licence in relation to any of the following matters
5
(including by adding or removing any of those matters):
6
(i) kinds of export operations;
7
(ii) kinds of prescribed goods;
8
(iii) if applicable, places to which goods may be exported; or
9
(b) to vary the conditions of the licence; or
10
(c) to vary the licence to make a minor change to a matter stated
11
in the licence (including to correct a minor or technical
12
error); or
13
(d) to vary any other aspect of the licence.
14
Example: For the purposes of paragraph (d), a variation may be needed to
15
change the name of a person who participates, or will participate, in
16
the management or control of the holder's export business.
17
Note:
Section 377 sets out requirements for applications. A single
18
application may be made to make a variation in relation to an export
19
licence and to renew the licence.
20
(2) If the Secretary receives an application under subsection (1) to
21
make a variation, the Secretary must decide:
22
(a) to make the variation; or
23
(b) to refuse to make the variation.
24
Note 1:
See section 379 for matters relating to dealing with applications.
25
Note 2:
If the Secretary does not make a decision in relation to the application
26
within the consideration period for the application, the Secretary is
27
taken to have refused the application at the end of that period (see
28
subsection 379(2)).
29
Note 3:
A decision to refuse the application is a reviewable decision (see
30
Part 2 of Chapter 11) and the Secretary must give the applicant written
31
notice of the decision (see section 382).
32
Chapter 6
Export licences
Part 4
Variation of export licence
Division 1
Application by holder
Section 200
226
Export Control Bill 2019
No. , 2019
(3) The Secretary may make the variation if the Secretary is satisfied,
1
having regard to any matter that the Secretary considers relevant,
2
that:
3
(a) either:
4
(i) all relevant Commonwealth liabilities of the applicant
5
have been paid or are taken to have been paid; or
6
(ii) if one or more relevant Commonwealth liabilities of the
7
applicant have not been paid or are not taken to have
8
been paid--the non-payment is due to exceptional
9
circumstances; and
10
(b) the applicant is, and is likely to continue to be, able to
11
comply with the conditions to which the export licence, if
12
varied, would be subject; and
13
(c) any other requirement prescribed by the rules is met.
14
Note:
For the purposes of paragraph (3)(a), a relevant Commonwealth
15
liability of a person is taken to have been paid in certain circumstances
16
(see section 431).
17
200 Notice of variation
18
(1) If the Secretary makes a variation in relation to an export licence
19
under paragraph 199(2)(a), the Secretary must give the holder of
20
the licence written notice of the variation.
21
(2) The notice must state the following:
22
(a) details of the variation;
23
(b) if the variation is of the conditions of the export licence--the
24
varied conditions;
25
(c) the date the variation takes effect;
26
(d) any other information prescribed by the rules.
27
(3) If the export licence needs to be changed to take account of the
28
variation, the Secretary must, within 7 days after making the
29
variation, give the holder of the licence a new export licence
30
including the variation.
31
Note:
The export licence, as varied, remains in force as provided by
32
section 194.
33
Export licences
Chapter 6
Variation of export licence
Part 4
Variation by Secretary
Division 2
Section 201
No. , 2019
Export Control Bill 2019
227
Division 2--Variation by Secretary
1
201 Secretary may make variations in relation to export licence
2
(1) The Secretary may do any of the following in relation to an export
3
licence:
4
(a) vary any aspect of the licence, including so that it does not
5
cover:
6
(i) a kind of export operations; or
7
(ii) a kind of prescribed goods; or
8
(iii) if applicable, a place to which goods may be exported;
9
(b) vary the conditions of the licence (including by imposing
10
new conditions);
11
(c) if there is no expiry date for the licence--vary the licence by
12
setting an expiry date for the licence;
13
(d) if there is an expiry date for the licence (whether under
14
paragraph 194(4)(a) or (b))--vary the licence by setting a
15
different expiry date for the licence;
16
(e) if there is an expiry date for the licence under
17
paragraph 194(4)(b)--vary the licence by revoking that
18
expiry date.
19
Note 1:
If the Secretary revokes the expiry date for the export licence under
20
paragraph (e), the licence will remain in force:
21
(a) if rules made for the purposes of subsection 194(5) apply in
22
relation to the licence--for the period prescribed by the rules; or
23
(b) if there are no such rules--indefinitely (unless it is revoked).
24
Note 2:
Certain decisions under subsection (1) are reviewable decisions (see
25
Part 2 of Chapter 11).
26
(2) The Secretary may make a variation in relation to an export licence
27
under paragraph (1)(a), (b) or (c), or set an earlier expiry date for
28
the licence under paragraph (1)(d), only if the Secretary reasonably
29
believes that:
30
(a) the integrity of a kind of prescribed goods covered by the
31
licence cannot be ensured; or
32
(b) it is necessary to do so to ensure:
33
Chapter 6
Export licences
Part 4
Variation of export licence
Division 2
Variation by Secretary
Section 201
228
Export Control Bill 2019
No. , 2019
(i) compliance with the requirements of this Act in relation
1
to the export operations and prescribed goods covered
2
by the licence; or
3
(ii) that importing country requirements relating to the
4
export operations and prescribed goods covered by the
5
licence are, or will be, met; or
6
(c) if the holder of the licence is a kind of person who is required
7
by rules made for the purposes of section 373 to be a fit and
8
proper person for the purposes of this Chapter--the holder is
9
not a fit and proper person; or
10
(d) a condition of the licence has been, or is being, contravened;
11
or
12
(e) it is necessary to do so:
13
(i) to take account of an event notified under section 219;
14
or
15
(ii) to correct a minor or technical error; or
16
(f) the licence needs to be varied for any other reason prescribed
17
by the rules.
18
Notice of certain proposed variations
19
(3) The Secretary must not make a variation in relation to an export
20
licence under paragraph (1)(a), (b) or (c), or set an earlier expiry
21
date for the licence under paragraph (1)(d), unless the Secretary
22
has given a written notice to the holder of the licence in accordance
23
with subsection (4).
24
(4) A notice under subsection (3) must:
25
(a) specify each proposed variation; and
26
(b) specify the grounds for each proposed variation; and
27
(c) subject to subsection (5), request the holder of the export
28
licence to give the Secretary, within 14 days after the day the
29
notice is given, a written statement showing cause why the
30
proposed variation should not be made; and
31
(d) include a statement setting out the holder's right to seek
32
review of a decision to make the proposed variation.
33
Export licences
Chapter 6
Variation of export licence
Part 4
Variation by Secretary
Division 2
Section 202
No. , 2019
Export Control Bill 2019
229
(5) A notice under subsection (3) is not required to include the request
1
referred to in paragraph (4)(c) if the Secretary reasonably believes
2
that the grounds for the proposed variation are serious and urgent.
3
202 Notice of variation
4
(1) If the Secretary makes a variation in relation to an export licence
5
under subsection 201(1), the Secretary must give the holder of the
6
licence written notice of the variation.
7
(2) The notice must state the following:
8
(a) details of the variation;
9
(b) if the variation is of the conditions of the export licence--the
10
varied conditions and any new conditions;
11
(c) if the variation affects the period of effect of the licence:
12
(i) the expiry date for the licence under
13
paragraph 194(4)(a) or (b) (whichever applies); or
14
(ii) if there is no expiry date for the licence--that the
15
licence remains in force unless it is revoked;
16
(d) the date the variation takes effect;
17
(e) any other information prescribed by the rules.
18
(3) If the holder was given a notice (a
show cause notice
) under
19
subsection 201(3) that included the request referred to in
20
paragraph 201(4)(c), the variation must not take effect before the
21
earlier of the following:
22
(a) the day after any response to the request is received by the
23
Secretary;
24
(b) the end of 14 days after the show cause notice was given.
25
(4) If the export licence needs to be changed to take account of the
26
variation, the Secretary must, within 7 days after making the
27
variation, give the holder of the licence a new export licence
28
including the variation.
29
Note:
The export licence, as varied, remains in force as provided by
30
section 194.
31
Chapter 6
Export licences
Part 5
Suspension of export licence
Division 1
Suspension requested by holder
Section 203
230
Export Control Bill 2019
No. , 2019
Part 5--Suspension of export licence
1
Division 1--Suspension requested by holder
2
203 Holder may request suspension
3
(1) Subject to subsection (2), the holder of an export licence may
4
request the Secretary to suspend the licence in relation to a kind of
5
export operations and a kind of prescribed goods and, if applicable,
6
a place to which goods may be exported.
7
(2) A request may be made under subsection (1) only in the
8
circumstances prescribed by the rules.
9
(3) A request under subsection (1) may relate to more than one kind of
10
export operations or more than one kind of prescribed goods and, if
11
applicable, more than one place.
12
(4) A request under subsection (1) must:
13
(a) be in writing; and
14
(b) state each kind of export operations and each kind of
15
prescribed goods and, if applicable, each place, in relation to
16
which the licence is to be suspended; and
17
(c) state the reason for the suspension; and
18
(d) include any other information prescribed by the rules.
19
(5) If the Secretary receives a request from the holder of an export
20
licence under subsection (1), the Secretary must, by written notice
21
to the holder, suspend the licence as requested, with effect on the
22
day specified in the notice.
23
204 Request to revoke suspension
24
(1) If an export licence is suspended under section 203, the holder of
25
the licence may request the Secretary to revoke the suspension.
26
(2) A request under subsection (1) must:
27
(a) be in writing; and
28
Export licences
Chapter 6
Suspension of export licence
Part 5
Suspension requested by holder
Division 1
Section 204
No. , 2019
Export Control Bill 2019
231
(b) state the reason for the request; and
1
(c) include any other information prescribed by the rules.
2
(3) If the Secretary receives a request from the holder of an export
3
licence under subsection (1), the Secretary may:
4
(a) if the Secretary is satisfied that the reason for the suspension
5
no longer exists and there is no reason why the suspension
6
should not be revoked--revoke the suspension by written
7
notice to the holder; or
8
(b) in any other case:
9
(i) suspend the licence under Division 2 of this Part; or
10
(ii) revoke the licence under Division 2 of Part 6.
11
Note:
A decision to suspend or revoke the export licence is a reviewable
12
decision (see Part 2 of Chapter 11).
13
Chapter 6
Export licences
Part 5
Suspension of export licence
Division 2
Suspension by Secretary
Section 205
232
Export Control Bill 2019
No. , 2019
Division 2--Suspension by Secretary
1
205 Grounds for suspension--general
2
(1) The Secretary may suspend an export licence in relation to one or
3
more kinds of export operations and one or more kinds of
4
prescribed goods and, if applicable, one or more places to which
5
goods may be exported, if the Secretary reasonably believes any of
6
the following:
7
(a) the integrity of a kind of prescribed goods covered by the
8
licence cannot be ensured;
9
(b) if the holder of the licence is a kind of person who is required
10
by rules made for the purposes of section 373 to be a fit and
11
proper person for the purposes of this Chapter--the holder is
12
not a fit and proper person;
13
(c) a requirement referred to in subsection 191(2) is no longer
14
met;
15
(d) a condition of the licence has been, or is being, contravened;
16
(e) the holder of the licence:
17
(i) failed to comply with a direction given to the holder by
18
an authorised officer or the Secretary; or
19
(ii) failed to comply with a request by an authorised officer
20
to provide information or a document; or
21
(iii) failed to provide facilities and assistance to an auditor as
22
required by section 271; or
23
(iv) failed to comply with a request made by an auditor
24
under section 272;
25
(f) the holder of the licence has engaged in conduct that:
26
(i) intimidated a person performing functions or exercising
27
powers under this Act; or
28
(ii) hindered or prevented a person from performing
29
functions or exercising powers under this Act;
30
(g) the holder of the licence or any other person who participates
31
in the management or control of the holder's export business
32
(as provided by section 220):
33
Export licences
Chapter 6
Suspension of export licence
Part 5
Suspension by Secretary
Division 2
Section 205
No. , 2019
Export Control Bill 2019
233
(i) made a false, misleading or incomplete statement in an
1
application under this Chapter; or
2
(ii) gave false, misleading or incomplete information or
3
documents to the Secretary or to another person
4
performing functions or exercising powers under this
5
Act; or
6
(iii) gave false, misleading or incomplete information or
7
documents to the Secretary or the Department under a
8
prescribed agriculture law;
9
(h) the holder of the licence is or was an associate of a person
10
referred to in paragraph 221(1)(a), (b), (c) or (d);
11
(i) the holder of the licence has contravened a requirement of
12
this Act in relation to the licence;
13
(j) a ground prescribed by the rules exists.
14
Note 1:
A suspension must not be for more than 12 months (see section 208).
15
Note 2:
A decision to suspend an export licence under this section is a
16
reviewable decision (see Part 2 of Chapter 11).
17
Notice of proposed suspension
18
(2) The Secretary must not suspend an export licence under
19
subsection (1) unless the Secretary has given a written notice to the
20
holder of the licence in accordance with subsection (3).
21
(3) A notice under subsection (2) must:
22
(a) specify each kind of export operations and each kind of
23
prescribed goods and, if applicable, each place, in relation to
24
which the export licence is proposed to be suspended; and
25
(b) specify the grounds for the proposed suspension; and
26
(c) subject to subsection (4), request the holder of the export
27
licence to give the Secretary, within 14 days after the day the
28
notice is given, a written statement showing cause why the
29
licence should not be suspended as proposed; and
30
(d) include a statement setting out the holder's right to seek
31
review of a decision to suspend the licence as proposed.
32
(4) A notice under subsection (2) is not required to include the request
33
referred to in paragraph (3)(c) if the Secretary reasonably believes
34
that the grounds for the suspension are serious and urgent.
35
Chapter 6
Export licences
Part 5
Suspension of export licence
Division 2
Suspension by Secretary
Section 206
234
Export Control Bill 2019
No. , 2019
206 Grounds for suspension--overdue relevant Commonwealth
1
liability
2
Notice of proposed suspension
3
(1) The Secretary may suspend an export licence in relation to all
4
kinds of export operations and all kinds of prescribed goods if:
5
(a) a relevant Commonwealth liability of the holder of the
6
licence (the
debtor
) is more than 30 days overdue; and
7
(b) the Secretary has given a written notice to the debtor in
8
accordance with subsection (2); and
9
(c) within 8 days after the notice is given:
10
(i) the relevant Commonwealth liability has not been paid;
11
or
12
(ii) the debtor has not entered into an arrangement with the
13
Secretary to pay the relevant Commonwealth liability.
14
Note 1:
A suspension must not be for more than 12 months (see section 208).
15
Note 2:
A decision to suspend an export licence under this section is a
16
reviewable decision (see Part 2 of Chapter 11).
17
Note 3:
If the Secretary suspends an export licence under this section, the
18
Secretary may revoke the export licence in certain circumstances (see
19
section 213).
20
(2) A notice under subsection (1) must:
21
(a) state that a relevant Commonwealth liability of the debtor in
22
relation to an export licence is more than 30 days overdue;
23
and
24
(b) state that the Secretary may suspend the export licence in
25
relation to all kinds of export operations and all kinds of
26
prescribed goods if, within 8 days after the notice is given:
27
(i) the relevant Commonwealth liability is not paid; or
28
(ii) the debtor has not entered into an arrangement with the
29
Secretary to pay the relevant Commonwealth liability;
30
and
31
(c) include a statement setting out the debtor's right to seek
32
review of a decision to suspend the export licence.
33
Export licences
Chapter 6
Suspension of export licence
Part 5
Suspension by Secretary
Division 2
Section 207
No. , 2019
Export Control Bill 2019
235
Secretary may direct that activities not be carried out
1
(3) If the Secretary suspends an export licence under subsection (1),
2
the Secretary may refuse to carry out, or direct a person not to
3
carry out, specified activities or kinds of activities in relation to the
4
debtor under this Act until the relevant Commonwealth liability
5
has been paid.
6
Note:
See also section 309 (general provisions relating to directions).
7
Action under this section does not affect liability to pay relevant
8
Commonwealth liability
9
(4) Action by the Secretary under this section does not affect the
10
liability of the debtor to pay the relevant Commonwealth liability.
11
207 Notice of suspension
12
(1) If the Secretary decides to suspend an export licence under this
13
Division, the Secretary must give the holder of the licence a written
14
notice stating the following:
15
(a) that the export licence is to be suspended, for the period
16
specified in the notice, in relation to all or specified kinds of
17
export operations and all or specified kinds of prescribed
18
goods and, if applicable, all or specified places to which
19
goods may be exported;
20
(b) the reasons for the suspension;
21
(c) the date the suspension is to start;
22
(d) the period of the suspension.
23
Note:
The notice must also state the matters referred to in section 382.
24
(2) If the holder of the export licence was given a notice (a
show cause
25
notice
) under subsection 205(2) that included the request referred
26
to in paragraph 205(3)(c), the suspension must not start before the
27
earlier of the following:
28
(a) the day after any response to the request is received by the
29
Secretary;
30
(b) the end of 14 days after the show cause notice was given.
31
Chapter 6
Export licences
Part 5
Suspension of export licence
Division 2
Suspension by Secretary
Section 208
236
Export Control Bill 2019
No. , 2019
208 Period of suspension
1
(1) A suspension of an export licence under this Division must not be
2
for more than 12 months.
3
(2) The Secretary may vary the period of a suspension of an export
4
licence under this Division by written notice to the holder of the
5
licence. However, the total period of a suspension must not be
6
more than 12 months.
7
Note:
A decision to extend the period of a suspension is a reviewable
8
decision (see Part 2 of Chapter 11).
9
209 Revocation of suspension
10
The Secretary may revoke a suspension of an export licence under
11
this Division by written notice to the holder of the licence.
12
Export licences
Chapter 6
Suspension of export licence
Part 5
Other provisions
Division 3
Section 210
No. , 2019
Export Control Bill 2019
237
Division 3--Other provisions
1
210 Effect of suspension
2
(1) If an export licence is suspended wholly or in part under Division 1
3
or 2:
4
(a) the licence remains in force while it is suspended; and
5
(b) subject to rules made for the purposes of subsection (2), the
6
requirements of this Act in relation to the licence (including
7
the conditions of the licence) must be complied with while
8
the licence is suspended.
9
(2) The rules may prescribe requirements of this Act (including
10
conditions of an export licence) that are not required to be
11
complied with during any period when the licence is suspended.
12
Chapter 6
Export licences
Part 6
Revocation of export licence
Division 1
Revocation requested by holder
Section 211
238
Export Control Bill 2019
No. , 2019
Part 6--Revocation of export licence
1
Division 1--Revocation requested by holder
2
211 Holder may request revocation
3
(1) The holder of an export licence (including a licence that is
4
suspended wholly or in part under Part 5) may request the
5
Secretary to revoke the licence.
6
Note:
If the holder does not wish to revoke the export licence in relation to
7
all kinds of export operations and all kinds of prescribed goods, the
8
holder may apply to vary the licence under Division 1 of Part 4.
9
(2) A request under subsection (1) must:
10
(a) be in writing; and
11
(b) include the information (if any) prescribed by the rules.
12
(3) If the Secretary receives a request from the holder of an export
13
licence under subsection (1), the Secretary must, by written notice
14
to the holder, revoke the licence with effect on the day specified in
15
the notice.
16
(4) Subsection (3) does not apply if, before the request under
17
subsection (1) was made, the Secretary:
18
(a) had given the holder of the export licence a notice under
19
subsection 212(2) in relation to the licence; and
20
(b) had not decided whether to revoke the licence or not.
21
Export licences
Chapter 6
Revocation of export licence
Part 6
Revocation by Secretary
Division 2
Section 212
No. , 2019
Export Control Bill 2019
239
Division 2--Revocation by Secretary
1
212 Grounds for revocation--general
2
(1) The Secretary may revoke an export licence (including a licence
3
that is suspended wholly or in part under Part 5) if the Secretary
4
reasonably believes any of the following:
5
(a) the integrity of a kind of prescribed goods covered by the
6
licence cannot be ensured;
7
(b) if the holder of the licence is a kind of person who is required
8
by rules made for the purposes of section 373 to be a fit and
9
proper person for the purposes of this Chapter--the holder is
10
not a fit and proper person;
11
(c) a requirement referred to in subsection 191(2) is no longer
12
met;
13
(d) a condition of the licence has been, or is being, contravened;
14
(e) the holder of the licence:
15
(i) failed to comply with a direction given to the holder by
16
an authorised officer or the Secretary; or
17
(ii) failed to comply with a request by an authorised officer
18
to provide information or a document; or
19
(iii) failed to provide facilities and assistance to an auditor as
20
required by section 271; or
21
(iv) failed to comply with a request made by an auditor
22
under section 272;
23
(f) the holder of the licence has engaged in conduct that:
24
(i) intimidated a person performing functions or exercising
25
powers under this Act; or
26
(ii) hindered or prevented a person from performing
27
functions or exercising powers under this Act;
28
(g) the holder of the licence or any other person who participates
29
in the management or control of the holder's export business
30
(as provided by section 220):
31
(i) made a false, misleading or incomplete statement in an
32
application under this Chapter; or
33
Chapter 6
Export licences
Part 6
Revocation of export licence
Division 2
Revocation by Secretary
Section 213
240
Export Control Bill 2019
No. , 2019
(ii) gave false, misleading or incomplete information or
1
documents to the Secretary or to another person
2
performing functions or exercising powers under this
3
Act; or
4
(iii) gave false, misleading or incomplete information or
5
documents to the Secretary or the Department under a
6
prescribed agriculture law;
7
(h) the holder of the licence is or was an associate of a person
8
referred to in paragraph 221(1)(a), (b), (c) or (d);
9
(i) the holder of the licence has contravened a requirement of
10
this Act in relation to the licence;
11
(j) a ground prescribed by the rules exists.
12
Note:
A decision to revoke an export licence under this section is a
13
reviewable decision (see Part 2 of Chapter 11).
14
Notice of proposed revocation
15
(2) The Secretary must not revoke an export licence under
16
subsection (1) unless the Secretary has given a written notice to the
17
holder of the licence in accordance with subsection (3).
18
(3) A notice under subsection (2) must:
19
(a) specify the grounds for the proposed revocation; and
20
(b) subject to subsection (4), request the holder of the export
21
licence to give the Secretary, within 14 days after the day the
22
notice is given, a written statement showing cause why the
23
licence should not be revoked; and
24
(c) include a statement setting out the holder's right to seek
25
review of a decision to revoke the licence.
26
(4) A notice under subsection (2) is not required to include the request
27
referred to in paragraph (3)(b) if the Secretary reasonably believes
28
that the grounds for the revocation are serious and urgent.
29
213 Grounds for revocation--overdue relevant Commonwealth
30
liability
31
(1) The Secretary may revoke an export licence if:
32
Export licences
Chapter 6
Revocation of export licence
Part 6
Revocation by Secretary
Division 2
Section 214
No. , 2019
Export Control Bill 2019
241
(a) the licence is suspended under subsection 206(1) for
1
non-payment of a relevant Commonwealth liability; and
2
(b) within 90 days after the start of the suspension:
3
(i) the relevant Commonwealth liability had not been paid;
4
or
5
(ii) the person (the
debtor
) who is liable to pay the relevant
6
Commonwealth liability had not entered into an
7
arrangement with the Secretary to pay the relevant
8
Commonwealth liability.
9
Note:
A decision to revoke an export licence under this section is a
10
reviewable decision (see Part 2 of Chapter 11).
11
Secretary may direct that activities not be carried out
12
(2) If the Secretary revokes an export licence under subsection (1), the
13
Secretary may refuse to carry out, or direct a person not to carry
14
out, specified activities or kinds of activities in relation to the
15
debtor under this Act until the relevant Commonwealth liability
16
has been paid.
17
Note:
See also section 309 (general provisions relating to directions).
18
Action under this section does not affect liability to pay relevant
19
Commonwealth liability
20
(3) Action by the Secretary under this section does not affect the
21
liability of the debtor to pay the relevant Commonwealth liability.
22
214 Notice of revocation
23
(1) If the Secretary decides to revoke an export licence under this
24
Division, the Secretary must give the holder of the licence a written
25
notice stating the following:
26
(a) that the licence is to be revoked;
27
(b) the reasons for the revocation;
28
(c) the date the revocation is to take effect.
29
Note:
The notice must also state the matters referred to in section 382.
30
(2) If the holder of the export licence was given a notice (a
show cause
31
notice
) under subsection 212(2) that included the request referred
32
Chapter 6
Export licences
Part 6
Revocation of export licence
Division 2
Revocation by Secretary
Section 214
242
Export Control Bill 2019
No. , 2019
to in paragraph 212(3)(b), the revocation must not take effect
1
before the earlier of the following:
2
(a) the day after any response to the request is received by the
3
Secretary;
4
(b) the end of 14 days after the show cause notice was given.
5
Export licences
Chapter 6
Revocation of export licence
Part 6
Other provisions
Division 3
Section 215
No. , 2019
Export Control Bill 2019
243
Division 3--Other provisions
1
215 Export operations must not be carried out after export licence
2
revoked
3
(1) A person contravenes this subsection if:
4
(a) the person was the holder of an export licence; and
5
(b) the person was given notice of revocation of the licence
6
under subsection 211(3) or 214(1); and
7
(c) export operations that were covered by the licence were
8
carried out after the revocation took effect.
9
Note:
The physical elements of an offence against subsection (2) are set out
10
in this subsection (see section 370).
11
Fault-based offence
12
(2) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
15
Civil penalty provision
16
(3) A person is liable to a civil penalty if the person contravenes
17
subsection (1).
18
Civil penalty:
240 penalty units.
19
216 Secretary may require action to be taken after export licence
20
revoked
21
(1) This section applies if:
22
(a) a person was given notice of revocation of an export licence
23
under subsection 211(3) or 214(1); or
24
(b) the export licence was revoked under Division 1 or 2.
25
(2) The Secretary may, in writing, direct the person to take specified
26
action, within a specified period after the export licence is revoked,
27
in relation to the export operations and prescribed goods that were
28
Chapter 6
Export licences
Part 6
Revocation of export licence
Division 3
Other provisions
Section 216
244
Export Control Bill 2019
No. , 2019
covered by the licence. The action must be action that is necessary
1
for the purpose of achieving one or more objects of this Act.
2
(3) A direction to a person under subsection (2) must state that the
3
person could commit an offence or be liable to a civil penalty if the
4
person fails to comply with the direction.
5
Note:
See also section 309 (general provisions relating to directions).
6
(4) A person who is given a direction under subsection (2) must
7
comply with the direction.
8
Fault-based offence
9
(5) A person commits an offence if:
10
(a) the person is given a direction under subsection (2); and
11
(b) the person engages in conduct; and
12
(c) the conduct contravenes the direction.
13
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
14
Civil penalty provision
15
(6) A person is liable to a civil penalty if the person contravenes
16
subsection (4).
17
Civil penalty:
240 penalty units.
18
Export licences
Chapter 6
Obligations of holders of export licences
Part 7
Section 217
No. , 2019
Export Control Bill 2019
245
Part 7--Obligations of holders of export licences
1
2
217 Conditions of export licence must not be contravened
3
Export licence that is not suspended
4
(1) A person contravenes this subsection if:
5
(a) the person is the holder of an export licence; and
6
(b) the licence is not suspended wholly or in part under Part 5;
7
and
8
(c) a condition of the licence is contravened.
9
Note:
The physical elements of an offence against subsection (2) are set out
10
in this subsection (see section 370).
11
Fault-based offence
12
(2) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty:
15
(a) if the person is an individual--imprisonment for 10 years or
16
2,000 penalty units, or both; or
17
(b) if the person is a body corporate--the amount under
18
section 50A.
19
(3) For the purposes of subsection (2), strict liability applies to
20
paragraph (1)(c).
21
Civil penalty provision
22
(4) A person is liable to a civil penalty if the person contravenes
23
subsection (1).
24
Civil penalty:
25
(a) if the person is an individual--4,000 penalty units; or
26
(b) if the person is a body corporate--the amount under
27
section 50A.
28
Chapter 6
Export licences
Part 7
Obligations of holders of export licences
Section 218
246
Export Control Bill 2019
No. , 2019
Export licence that is suspended
1
(5) A person contravenes this subsection if:
2
(a) the person is the holder of an export licence; and
3
(b) the licence is suspended wholly or in part under Part 5; and
4
(c) a condition of the licence is contravened; and
5
(d) the condition is required to be complied with during the
6
period of the suspension.
7
Note:
The physical elements of an offence against subsection (6) are set out
8
in this subsection (see section 370).
9
Fault-based offence
10
(6) A person commits an offence if the person contravenes
11
subsection (5).
12
Penalty:
13
(a) if the person is an individual--imprisonment for 10 years or
14
2,000 penalty units, or both; or
15
(b) if the person is a body corporate--the amount under
16
section 50A.
17
(7) For the purposes of subsection (6), strict liability applies to
18
paragraphs (5)(c) and (d).
19
Civil penalty provision
20
(8) A person is liable to a civil penalty if the person contravenes
21
subsection (5).
22
Civil penalty:
23
(a) if the person is an individual--4,000 penalty units; or
24
(b) if the person is a body corporate--the amount under
25
section 50A.
26
218 Additional or corrected information in relation to application
27
for licence etc.
28
(1) The holder of an export licence must comply with subsection (2) if:
29
Export licences
Chapter 6
Obligations of holders of export licences
Part 7
Section 219
No. , 2019
Export Control Bill 2019
247
(a) the holder becomes aware that information included in an
1
application made by the holder under this Chapter, or
2
information or a document given to the Secretary in relation
3
to such an application, was incomplete or incorrect; or
4
(b) a change prescribed by the rules occurs.
5
(2) The holder of the export licence must, as soon as practicable, give
6
the Secretary additional or corrected information, to the extent that
7
it is relevant to assessing whether:
8
(a) the requirements of this Act in relation to a matter covered by
9
the licence have been, are being, or will be complied with; or
10
(b) importing country requirements relating to a matter covered
11
by the licence have been, are being, or will be met.
12
Note 1:
A person may commit an offence or be liable to a civil penalty if the
13
person makes a false or misleading statement in an application or
14
provides false or misleading information or documents (see
15
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
16
sections 367, 368 and 369 of this Act).
17
Note 2:
The Secretary may suspend or revoke the export licence if the holder
18
fails to comply with this subsection (see paragraphs 205(1)(i) and
19
212(1)(i)).
20
Note 3:
This section is not subject to the privilege against self-incrimination
21
(see section 426).
22
Civil penalty provision
23
(3) A person is liable to a civil penalty if:
24
(a) the person is required to give information to the Secretary
25
under subsection (2); and
26
(b) the person fails to comply with the requirement.
27
Civil penalty:
60 penalty units.
28
219 Notice of changes to holder of export licence
29
(1) The holder of an export licence must notify the Secretary, in
30
writing, as soon as practicable after any of the following events
31
occurs:
32
(a) there is a change in the holder's business structure;
33
Chapter 6
Export licences
Part 7
Obligations of holders of export licences
Section 219
248
Export Control Bill 2019
No. , 2019
(b) if the holder is an individual--the individual enters into a
1
personal insolvency agreement under Part X of the
2
Bankruptcy Act 1966
;
3
(c) if the holder is a corporation--the corporation:
4
(i) enters into administration (within the meaning of
5
section 435C of the
Corporations Act 2001
); or
6
(ii) is to be wound up (whether by a court or voluntarily);
7
(d) there is a change in the trading name, business address or
8
contact details of the holder;
9
(e) any other event prescribed by the rules.
10
Example: For the purposes of paragraph (a), each of the following would be a
11
change in the holder's business structure:
12
(a) a change in a person who participates in the management or
13
control of the holder's export business;
14
(b) if the holder is a partnership--a change in the membership of the
15
partnership.
16
Note:
The Secretary may suspend or revoke the export licence if:
17
(a) in certain cases, the holder of the licence is not a fit and proper
18
person (see paragraphs 205(1)(b) and 212(1)(b)); or
19
(b) the holder fails to comply with this subsection (see paragraphs
20
205(1)(i) and 212(1)(i)).
21
Civil penalty provision
22
(2) A person is liable to a civil penalty if:
23
(a) the person is required to notify the Secretary of an event in
24
accordance with subsection (1); and
25
(b) the person fails to comply with the requirement.
26
Civil penalty:
60 penalty units.
27
Export licences
Chapter 6
Other matters
Part 8
Section 220
No. , 2019
Export Control Bill 2019
249
Part 8--Other matters
1
2
220 Persons who participate in the management or control of
3
another person's export business
4
(1) For the purposes of this Chapter, a person (the
first person
) is
5
taken to be a person who participates or would participate in the
6
management or control of an export business or proposed export
7
business of another person if:
8
(a) the first person has, or would have, authority to direct the
9
export operations, or an important or substantial part of the
10
export operations, carried out, or to be carried out, by or in
11
connection with the other person's export business or
12
proposed export business; or
13
(b) the first person has, or would have, authority to direct another
14
person who has, or would have, authority of the kind referred
15
to in paragraph (a) in the exercise of that authority or
16
proposed authority.
17
(2) If:
18
(a) a corporation (the
first corporation
) has applied for, or is the
19
holder of, an export licence; and
20
(b) a corporation (the
related corporation
) that is related to the
21
first corporation proposes to carry out, or carries out, export
22
operations in relation to a kind of prescribed goods to which
23
the application relates or that are covered by the export
24
licence; and
25
(c) the export operations are proposed to be carried out, or are
26
carried out, wholly or partly, in connection with the export
27
business, or proposed export business, of the first
28
corporation;
29
the export operations are taken, for the purposes of this Chapter, to
30
be export operations proposed to be carried out, or carried out, by
31
the first corporation as part of its export business or proposed
32
export business.
33
Chapter 6
Export licences
Part 8
Other matters
Section 221
250
Export Control Bill 2019
No. , 2019
(3) For the purposes of subsection (2), the question whether
1
corporations are related to each other is to be determined in the
2
same manner as that question would be determined under the
3
Corporations Act 2001
.
4
221 Secretary's powers in relation to associates of holder of export
5
licence
6
(1) This section applies if the Secretary:
7
(a) refuses to grant an export licence to a person; or
8
(b) decides not to renew a person's export licence; or
9
(c) suspends a person's export licence (wholly or in part) under
10
Division 2 of Part 5; or
11
(d) revokes a person's export licence under Division 2 of Part 6.
12
(2) The Secretary may do either or both of the following, on one or
13
more occasions:
14
(a) refuse to grant an export licence to an associate of a person
15
referred to in subsection (1);
16
(b) if an associate of a person referred to in subsection (1) is or
17
becomes the holder of an export licence--give the associate a
18
written notice in accordance with subsection (3).
19
(3) A notice under paragraph (2)(b) must:
20
(a) specify the grounds on which the notice is given; and
21
(b) request the associate to give the Secretary, within 14 days
22
after the day the notice is given, a written statement showing
23
cause why an export licence held by the associate:
24
(i) should not be suspended, or further suspended, under
25
Division 2 of Part 5; or
26
(ii) should not be revoked under Division 2 of Part 6; and
27
(c) include a statement setting out the associate's right to seek
28
review of a decision:
29
(i) to suspend, or further suspend, under Division 2 of
30
Part 5 an export licence held by the associate; or
31
(ii) to revoke under Division 2 of Part 6 an export licence
32
held by the associate.
33
Export licences
Chapter 6
Other matters
Part 8
Section 222
No. , 2019
Export Control Bill 2019
251
222 Secretary may give directions to holder of export licence
1
(1) The Secretary may give written directions to the holder of an
2
export licence.
3
Note 1:
An authorised officer may also give a direction to the holder of the
4
export licence (see section 305).
5
Note 2:
See also section 309 (general provisions relating to directions).
6
(2) Without limiting subsection (1), directions given under that
7
subsection may:
8
(a) prohibit (either absolutely or unless particular conditions are
9
complied with) a kind of export operations being carried out
10
in relation to a kind of prescribed goods by reference to any
11
matter that the Secretary considers appropriate; or
12
(b) require the holder of the licence to obtain the approval of the
13
Secretary before carrying out a kind of export operations in
14
relation to a kind of prescribed goods; or
15
(c) require the holder of the licence to carry out specified
16
activities in connection with a kind of export operations
17
carried out in relation to a kind of prescribed goods; or
18
(d) require the holder of the licence to give the Secretary
19
specified information or documents relating to a kind of
20
export operations carried out in relation to a kind of
21
prescribed goods; or
22
(e) require the holder of the licence to allow the Secretary, or a
23
person with appropriate qualifications or expertise, to enter
24
premises where a kind of export operations are being carried
25
out in relation to a kind of prescribed goods covered by the
26
licence; or
27
(f) do anything else prescribed by the rules.
28
(3) In considering whether to give a direction under subsection (1), the
29
Secretary must have regard to the matters prescribed by the rules.
30
(4) An export licence is subject to the condition that the holder of the
31
licence must comply with any directions given from time to time to
32
the holder under this section.
33
Chapter 6
Export licences
Part 8
Other matters
Section 222
252
Export Control Bill 2019
No. , 2019
Note:
The holder of an export licence may commit an offence or be liable to
1
a civil penalty if a condition of the licence is contravened (see
2
section 217).
3
(5) If a direction given to the holder of an export licence under
4
subsection (1) is inconsistent with the rules or a condition of the
5
licence, the direction prevails and the rules or condition, to the
6
extent of the inconsistency, do not have any effect.
7
Export permits
Chapter 7
Introduction
Part 1
Section 223
No. , 2019
Export Control Bill 2019
253
Chapter 7--Export permits
1
Part 1--Introduction
2
3
223 Simplified outline of this Chapter
4
A person may apply to the Secretary for an export permit for a kind
5
of prescribed goods. The Secretary, or in relation to certain kinds
6
of prescribed goods, a nominated export permit issuer, must decide
7
whether to issue the export permit. The Secretary may exercise
8
certain powers in relation to an application for an export permit.
9
An export permit is subject to certain conditions.
10
An export permit must be issued in writing.
11
An export permit has effect for a particular period.
12
An export permit may be varied, suspended or revoked and may be
13
required to be returned.
14
If an export permit is in force for a kind of prescribed goods, the
15
Secretary may require an assessment of the goods to be carried out
16
under Part 2 of Chapter 9.
17
A person who holds, or has applied for, an export permit must give
18
the Secretary additional or corrected information in certain
19
circumstances.
20
Chapter 7
Export permits
Part 2
Issue of export permit
Section 224
254
Export Control Bill 2019
No. , 2019
Part 2--Issue of export permit
1
2
224 Application for export permit
3
(1) A person may apply to the Secretary for an export permit for a kind
4
of prescribed goods.
5
(2) An application:
6
(a) may relate to more than one kind of prescribed goods; and
7
(b) may, but is not required to, specify one or more places to
8
which the goods are to be exported.
9
Note 1:
The export of a consignment of a kind of prescribed goods may be
10
prohibited unless the exporter holds an export permit that authorises
11
the export of the goods (see section 29 and rules made for the
12
purposes of that section).
13
Note 2:
Section 239 sets out requirements for applications.
14
225 Secretary must decide whether to issue export permit
15
(1) If an application for an export permit is made under section 224,
16
the Secretary must decide:
17
(a) to issue the permit; or
18
(b) to refuse to issue the permit.
19
Note 1:
If the application is for an export permit for more than one kind of
20
prescribed goods for export to more than one place, the Secretary may
21
decide to issue an export permit for some or all of those kinds of
22
goods for export to some or all of those places.
23
Note 2:
A nominated export permit issuer may issue an export permit for
24
certain kinds of prescribed goods in certain circumstances (see the
25
definition of
nominated export permit issuer
in section 12 and
26
paragraph 288(2)(c)).
27
Note 3:
A decision in relation to the application may be made by the operation
28
of a computer program (see section 286).
29
(2) The Secretary may have regard to any matter the Secretary
30
considers relevant in relation to the application, including the
31
following:
32
Export permits
Chapter 7
Issue of export permit
Part 2
Section 226
No. , 2019
Export Control Bill 2019
255
(a) whether the requirements of this Act have been complied
1
with, or will be complied with before the goods to which the
2
application relates are imported into the importing country;
3
(b) whether the importing country requirements relating to the
4
goods to which the application relates have been met, or will
5
be met before the goods are imported into the importing
6
country.
7
Note:
The Secretary may also exercise powers under section 241 in relation
8
to the application.
9
(3) If the Secretary decides not to issue the export permit, the
10
Secretary must give the applicant written notice of the decision.
11
226 Requirements for export permit
12
(1) A unique number must be allocated to each export permit.
13
(2) An export permit must be issued in writing (including if the
14
decision to issue the export permit was made by the operation of a
15
computer program under section 286).
16
(3) An export permit must:
17
(a) state the number allocated to the permit under subsection (1);
18
and
19
(b) include any other information prescribed by the rules.
20
227 Conditions of export permit
21
(1) An export permit is subject to:
22
(a) any conditions prescribed by the rules; and
23
(b) any additional conditions specified in a written notice given
24
to the holder of the permit.
25
Note 1:
An export permit may be revoked if conditions of the permit are
26
contravened (see section 233).
27
Note 2:
Conditions prescribed by rules made for the purposes of paragraph (a)
28
may be varied by amending the rules. Any additional conditions of an
29
export permit specified in a notice given under paragraph (b) may be
30
varied by the Secretary under section 229.
31
Chapter 7
Export permits
Part 2
Issue of export permit
Section 228
256
Export Control Bill 2019
No. , 2019
(2) Without limiting paragraph (1)(a) or (b), the rules may prescribe
1
conditions, and the Secretary may impose conditions, that are
2
required to be complied with before or after the export of the goods
3
to which the export permit relates.
4
(3) For the purposes of this Act, conditions to which an export permit
5
is subject under subsection (1) are conditions of the permit.
6
Fault-based offence
7
(4) A person commits an offence if:
8
(a) the person is the holder of an export permit that is in force;
9
and
10
(b) the person engages in conduct; and
11
(c) the conduct contravenes a condition of the permit.
12
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
13
Civil penalty provision
14
(5) A person is liable to a civil penalty if:
15
(a) the person is the holder of an export permit that is in force;
16
and
17
(b) the person contravenes a condition of the permit.
18
Civil penalty:
240 penalty units.
19
228 Period of effect of export permit
20
An export permit:
21
(a) takes effect when it is issued; and
22
(b) remains in force as prescribed by the rules, unless it is
23
revoked earlier under section 233.
24
Note:
An export permit that is suspended under subsection 231(1) remains in
25
force while it is suspended. However, while the permit is suspended, it
26
does not authorise the export of the goods for which it was issued (see
27
section 232).
28
Export permits
Chapter 7
Variation, suspension and revocation of export permit
Part 3
Section 229
No. , 2019
Export Control Bill 2019
257
Part 3--Variation, suspension and revocation of
1
export permit
2
3
229 Secretary may vary export permit or conditions of permit
4
(1) The Secretary may vary an export permit, or any conditions of an
5
export permit specified under paragraph 227(1)(b) (including by
6
imposing new conditions), only if:
7
(a) the Secretary reasonably believes that circumstances
8
prescribed by the rules exist; or
9
(b) the variation is necessary to correct a minor or technical
10
error.
11
Note:
Conditions of an export permit prescribed by rules made for the
12
purposes of paragraph 227(1)(a) may be varied by amending the rules.
13
(2) Conditions of an export permit that are varied under subsection (1)
14
may be required to be complied with before or after the export of
15
the goods to which the export permit relates.
16
(3) The Secretary may vary an export permit, or conditions of the
17
permit, under subsection (1):
18
(a) on the Secretary's own initiative; or
19
(b) on application by the holder of the permit.
20
Note 1:
Section 239 sets out requirements for applications.
21
Note 2:
The Secretary may exercise powers under section 241 in relation to an
22
application under paragraph (b) of this subsection.
23
(4) If the Secretary varies an export permit under subsection (1), the
24
Secretary must:
25
(a) issue the varied permit to the holder of the permit; and
26
(b) if the variation was made on the Secretary's own initiative--
27
give the holder a written notice stating the reasons for the
28
variation.
29
(5) If the Secretary varies conditions of an export permit under
30
subsection (1), the Secretary must give the holder of the permit a
31
written notice stating the following:
32
Chapter 7
Export permits
Part 3
Variation, suspension and revocation of export permit
Section 230
258
Export Control Bill 2019
No. , 2019
(a) the varied conditions and any new conditions;
1
(b) if the variation was made on the Secretary's own initiative--
2
the reasons for the varied conditions;
3
(c) the date the varied conditions are to take effect.
4
(6) If:
5
(a) the holder of an export permit applies to the Secretary to vary
6
the permit or conditions of the permit; and
7
(b) the Secretary decides not to make the variation in accordance
8
with the application;
9
the Secretary must give the applicant written notice of the decision.
10
The notice must include the reasons for the decision.
11
230 Period of effect of varied export permit
12
A varied export permit:
13
(a) takes effect when it is issued; and
14
(b) remains in force as prescribed by the rules, unless it is
15
revoked earlier under section 233.
16
Note:
An export permit that is suspended under subsection 231(1) remains in
17
force while it is suspended. However, while the permit is suspended, it
18
does not authorise the export of the goods for which it was issued (see
19
section 232).
20
231 Secretary may suspend export permit
21
(1) The Secretary may suspend an export permit if the Secretary
22
reasonably believes that circumstances prescribed by the rules
23
exist.
24
(2) If the Secretary decides to suspend an export permit under
25
subsection (1), the Secretary must give the holder of the permit a
26
written notice stating:
27
(a) that the export permit is to be suspended; and
28
(b) the reasons for the suspension.
29
(3) If an export permit is suspended under subsection (1), the Secretary
30
may revoke the suspension by written notice to the holder of the
31
permit.
32
Export permits
Chapter 7
Variation, suspension and revocation of export permit
Part 3
Section 232
No. , 2019
Export Control Bill 2019
259
232 Effect of suspension
1
(1) If the Secretary suspends an export permit under subsection 231(1),
2
the suspension takes effect when the holder of the permit receives
3
written notice of the suspension.
4
(2) An export permit that is suspended under subsection 231(1)
5
remains in force while it is suspended. However, while the permit
6
is suspended, it does not authorise the export of the goods for
7
which it was issued.
8
233 Secretary may revoke export permit
9
(1) The Secretary may revoke an export permit for a kind of prescribed
10
goods (including an export permit that is suspended under
11
subsection 231(1)) if the Secretary reasonably believes that:
12
(a) the integrity of the goods cannot be ensured; or
13
(b) a condition of the permit has been, or is being, contravened;
14
or
15
(c) the requirements of this Act have not been complied with, or
16
are not likely to be complied with before the goods are
17
imported into the importing country; or
18
(d) an importing country requirement relating to the goods will
19
not be, or is not likely to be, met before the goods are
20
imported into the importing country; or
21
(e) the holder of the permit:
22
(i) made a false, misleading or incomplete statement in the
23
application for the permit; or
24
(ii) gave false, misleading or incomplete information or
25
documents to the Secretary or to another person
26
performing functions or exercising powers under this
27
Act; or
28
(iii) gave false, misleading or incomplete information or
29
documents to the Secretary or the Department under a
30
prescribed agriculture law; or
31
(f) the holder of the permit has contravened a requirement of this
32
Act; or
33
(g) circumstances prescribed by the rules exist.
34
Chapter 7
Export permits
Part 3
Variation, suspension and revocation of export permit
Section 233
260
Export Control Bill 2019
No. , 2019
Note:
An export permit for a kind of prescribed goods is taken to have been
1
revoked if a temporary prohibition determination applies in relation to
2
the goods (see subsection 26(2)).
3
(2) If the Secretary revokes an export permit under subsection (1):
4
(a) the revocation takes effect immediately after the decision to
5
revoke the permit is made; and
6
(b) the Secretary must give the holder of the permit a written
7
notice stating:
8
(i) that the export permit has been revoked; and
9
(ii) the reasons for the revocation.
10
Export permits
Chapter 7
Other matters
Part 4
Section 234
No. , 2019
Export Control Bill 2019
261
Part 4--Other matters
1
2
234 Secretary may require assessment of goods
3
(1) This section applies if an export permit for a kind of prescribed
4
goods is in force.
5
(2) The Secretary may require an assessment of the goods to be carried
6
out under Part 2 of Chapter 9 if the Secretary reasonably believes
7
that:
8
(a) the integrity of the goods cannot be ensured; or
9
(b) a condition of the export permit has been, or is likely to be,
10
contravened; or
11
(c) the requirements of this Act have not been complied with, or
12
are not likely to be complied with before the goods are
13
imported into the importing country; or
14
(d) an importing country requirement relating to the goods will
15
not be, or is not likely to be, met before the goods are
16
imported into the importing country; or
17
(e) circumstances prescribed by the rules exist.
18
Example: The integrity of goods that are intended for human consumption may
19
not be able to be ensured if the goods are likely to deteriorate before
20
they arrive at their intended destination.
21
235 Additional or corrected information in relation to application
22
for export permit etc.
23
(1) The holder of an export permit must comply with subsection (2) if:
24
(a) the holder becomes aware that information included in an
25
application made by the holder to which Part 5 of this
26
Chapter applies, or information or a document given to the
27
Secretary in relation to such an application, was incomplete
28
or incorrect; or
29
(b) a change prescribed by the rules occurs.
30
Chapter 7
Export permits
Part 4
Other matters
Section 236
262
Export Control Bill 2019
No. , 2019
(2) The holder of the export permit must, as soon as practicable, give
1
the Secretary additional or corrected information, to the extent that
2
it is relevant to assessing whether:
3
(a) the requirements of this Act in relation to the export of the
4
goods for which the permit was issued have been complied
5
with, or will be complied with before the goods are imported
6
into the importing country; or
7
(b) the importing country requirements relating to the goods for
8
which the permit was issued have been met, or will be met
9
before the goods are imported into the importing country.
10
Note 1:
A person may commit an offence or be liable to a civil penalty if the
11
person makes a false or misleading statement in an application or
12
provides false or misleading information or documents (see
13
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
14
sections 367, 368 and 369 of this Act).
15
Note 2:
This section is not subject to the privilege against self-incrimination
16
(see section 426).
17
Civil penalty provision
18
(3) A person is liable to a civil penalty if:
19
(a) the person is required to give information to the Secretary
20
under subsection (2); and
21
(b) the person fails to comply with the requirement.
22
Civil penalty:
60 penalty units.
23
236 Return of export permit
24
(1) The rules may require a person to whom an export permit was
25
issued to return the permit to the Secretary:
26
(a) in the circumstances prescribed by the rules; and
27
(b) at the time, or within the period, prescribed by the rules.
28
Civil penalty provision
29
(2) A person is liable to a civil penalty if:
30
(a) the person is required to return an export permit to the
31
Secretary under rules made for the purposes of
32
subsection (1); and
33
Export permits
Chapter 7
Other matters
Part 4
Section 237
No. , 2019
Export Control Bill 2019
263
(b) the person fails to comply with the requirement.
1
Civil penalty:
60 penalty units.
2
237 Notification that goods not to be exported
3
The rules may require the holder of an export permit for a kind of
4
prescribed goods to notify the Secretary, in writing, if it is no
5
longer intended to export the goods:
6
(a) in the circumstances prescribed by the rules; and
7
(b) at the time, or within the period, prescribed by the rules.
8
Note:
The holder may be required to return the export permit to the
9
Secretary (see section 236).
10
Chapter 7
Export permits
Part 5
Applications for export permits
Section 238
264
Export Control Bill 2019
No. , 2019
Part 5--Applications for export permits
1
2
238 Applications to which this Part applies
3
This Part applies in relation to the following applications:
4
(a) an application under section 224 for an export permit;
5
(b) an application under paragraph 229(3)(b) to vary an export
6
permit or conditions of an export permit.
7
239 Requirements for applications
8
(1) An application must:
9
(a) if the Secretary has approved, in writing, a manner for
10
making an application--be made in an approved manner; and
11
(b) if the Secretary has approved a form for making an
12
application:
13
(i) include the information required by the form; and
14
(ii) be accompanied by any documents required by the
15
form; and
16
(c) include the information (if any) prescribed by the rules; and
17
(d) be accompanied by any documents prescribed by the rules.
18
Note:
A person may commit an offence or be liable to a civil penalty if the
19
person makes a false or misleading statement in an application or
20
provides false or misleading information or documents (see
21
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
22
sections 367, 368 and 369 of this Act).
23
(2) The Secretary may accept any information or document previously
24
given to the Secretary in connection with an application made
25
under this Act, or a notice of intention to export a consignment of
26
prescribed goods given under this Act, as satisfying any
27
requirement to give that information or document under
28
subsection (1).
29
(3) An application is taken not to have been made if the application
30
does not comply with the requirements referred to in subsection (1)
31
for the application.
32
Export permits
Chapter 7
Applications for export permits
Part 5
Section 240
No. , 2019
Export Control Bill 2019
265
(4) To avoid doubt, the Secretary may approve:
1
(a) different forms for applications relating to different kinds of
2
prescribed goods; or
3
(b) a single form for more than one kind of application.
4
Example: The Secretary may approve a single form to be used to apply for an
5
export permit for a kind of prescribed goods and a government
6
certificate in relation to the goods.
7
240 Additional or corrected information
8
(1) A person who has made an application to which this Part applies
9
must comply with subsection (2) if:
10
(a) the person becomes aware that information included in the
11
application, or information or a document given to the
12
Secretary in relation to the application, was incomplete or
13
incorrect; or
14
(b) a change prescribed by the rules occurs.
15
(2) The person must, as soon as practicable, give the Secretary
16
additional or corrected information, to the extent that it is relevant
17
to the Secretary's consideration of the application.
18
Note 1:
A person may commit an offence or be liable to a civil penalty if the
19
person makes a false or misleading statement in an application or
20
provides false or misleading information or documents (see
21
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
22
sections 367, 368 and 369 of this Act).
23
Note 2:
This section is not subject to the privilege against self-incrimination
24
(see section 426).
25
Civil penalty provision
26
(3) A person is liable to a civil penalty if:
27
(a) the person is required to give information to the Secretary
28
under subsection (2); and
29
(b) the person fails to comply with the requirement.
30
Civil penalty:
60 penalty units.
31
Chapter 7
Export permits
Part 5
Applications for export permits
Section 241
266
Export Control Bill 2019
No. , 2019
241 Powers of Secretary in relation to application
1
The Secretary may do anything the Secretary considers necessary
2
in relation to an application to which this Part applies, including
3
the following:
4
(a) request, in writing, the applicant, or another person who the
5
Secretary considers may have information or documents
6
relevant to the application, to give the Secretary further
7
specified information or documents relevant to the
8
application;
9
(b) require an audit of export operations carried out in relation to
10
the goods (the
relevant goods
) to which the application
11
relates to be conducted under Part 1 of Chapter 9;
12
(c) require an assessment of the relevant goods to be carried out
13
under Part 2 of Chapter 9;
14
(d) request the applicant to give the Secretary a written
15
statement, signed and dated by the applicant, verifying that:
16
(i) the requirements of this Act in relation to the export of
17
the relevant goods have been complied with, or will be
18
complied with before the goods are imported into the
19
importing country; and
20
(ii) any importing country requirements relating to the
21
relevant goods have been met, or will be met before the
22
goods are imported into the importing country;
23
(e) take, test or analyse samples of the relevant goods or from
24
equipment or other things relevant to the application;
25
(f) arrange for another person with appropriate qualifications or
26
expertise to take, test or analyse samples of the relevant
27
goods or from equipment or other things relevant to the
28
application;
29
(g) any other thing prescribed by the rules.
30
Note 1:
See Division 2 of Part 6 of Chapter 11 in relation to taking, testing and
31
analysing samples.
32
Note 2:
These powers may only be exercised by the Secretary or an authorised
33
officer or APS employee in the Department to whom the powers have
34
been subdelegated under section 288. These powers may not be
35
subdelegated to a nominated export permit issuer (see
36
paragraph 288(2)(c)).
37
Other matters relating to export
Chapter 8
Notices of intention to export
Part 1
Introduction
Division 1
Section 242
No. , 2019
Export Control Bill 2019
267
Chapter 8--Other matters relating to export
1
Part 1--Notices of intention to export
2
Division 1--Introduction
3
242 Simplified outline of this Part
4
A notice of intention to export a consignment of prescribed goods
5
may be required to be given in a manner and form approved by the
6
Secretary.
7
The notice must include the information (if any) prescribed by the
8
rules and must be accompanied by any documents prescribed by
9
the rules.
10
The notice must be given:
11
(a)
by a person prescribed by the rules in relation to the
12
goods; and
13
(b)
to the person prescribed by the rules; and
14
(c)
at a time, or within the period, prescribed by the rules.
15
A person who has given a notice of intention to export a
16
consignment of prescribed goods must give the Secretary
17
additional or corrected information in certain circumstances.
18
Chapter 8
Other matters relating to export
Part 1
Notices of intention to export
Division 2
Notices of intention to export
Section 243
268
Export Control Bill 2019
No. , 2019
Division 2--Notices of intention to export
1
243 Notice of intention to export--general requirements
2
(1) A notice of intention to export a consignment of prescribed goods
3
must:
4
(a) if the Secretary has approved, in writing, a manner for giving
5
the notice--be given in an approved manner; and
6
(b) if the Secretary has approved a form for the notice:
7
(i) include the information required by the form; and
8
(ii) be accompanied by any documents required by the
9
form; and
10
(c) include the information (if any) prescribed by the rules; and
11
(d) be accompanied by any documents prescribed by the rules;
12
and
13
(e) be given by a person prescribed by the rules in relation to the
14
goods; and
15
(f) be given to the person prescribed by the rules; and
16
(g) be given at a time, or within the period, prescribed by the
17
rules.
18
Note 1:
The export of a kind of prescribed goods may be prohibited unless a
19
notice of intention to export the goods is given (see section 29 and
20
rules made for the purposes of that section).
21
Note 2:
A person may commit an offence or be liable to a civil penalty if the
22
person provides false or misleading information or documents (see
23
sections 137.1 and 137.2 of the
Criminal Code
and sections 368 and
24
369 of this Act).
25
(2) The Secretary may accept any information or document previously
26
given to the Secretary in connection with an application made
27
under this Act, or a notice of intention to export given under this
28
Act, as satisfying any requirement to give that information or
29
document under subsection (1).
30
(3) A notice of intention to export a consignment of prescribed goods
31
is taken not to have been given if the notice does not comply with
32
the requirements referred to in subsection (1) for the notice.
33
Other matters relating to export
Chapter 8
Notices of intention to export
Part 1
Notices of intention to export
Division 2
Section 244
No. , 2019
Export Control Bill 2019
269
(4) To avoid doubt, the Secretary may approve:
1
(a) different forms for notices of intention to export different
2
kinds of prescribed goods; or
3
(b) a single form for a notice of intention to export a
4
consignment of prescribed goods and one or more
5
applications under this Act.
6
244 Additional or corrected information
7
(1) A person who has given a notice of intention to export a
8
consignment of prescribed goods must comply with subsection (2)
9
if:
10
(a) the person becomes aware that information included in the
11
notice, or information or a document given to the Secretary in
12
relation to the notice, was incomplete or incorrect; or
13
(b) a change prescribed by the rules occurs.
14
(2) The person must, as soon as practicable, give the Secretary
15
additional or corrected information, to the extent that it is relevant
16
to assessing whether:
17
(a) the requirements of this Act in relation to the export of the
18
goods have been, are being, or will be complied with; or
19
(b) importing country requirements relating to the goods have
20
been, are being, or will be met.
21
Note 1:
A person may commit an offence or be liable to a civil penalty if the
22
person provides false or misleading information or documents (see
23
sections 137.1 and 137.2 of the
Criminal Code
and sections 368 and
24
369 of this Act).
25
Note 2:
This section is not subject to the privilege against self-incrimination
26
(see section 426).
27
Civil penalty provision
28
(3) A person is liable to a civil penalty if:
29
(a) the person is required to give information to the Secretary
30
under subsection (2); and
31
(b) the person fails to comply with the requirement.
32
Civil penalty:
60 penalty units.
33
Chapter 8
Other matters relating to export
Part 2
Trade descriptions
Division 1
Introduction
Section 245
270
Export Control Bill 2019
No. , 2019
Part 2--Trade descriptions
1
Division 1--Introduction
2
245 Simplified outline of this Part
3
This Part defines trade description and false trade description for
4
goods and explains when a trade description is applied to goods.
5
The rules may require a trade description to be applied to
6
prescribed goods that are intended to be exported, and may make
7
other provision in relation to trade descriptions.
8
A person must not engage in conduct that contravenes rules made
9
for the purposes of this Part.
10
Except in certain circumstances, a person must not alter or interfere
11
with (whether by way of addition, removal, defacement or
12
otherwise) a trade description applied to prescribed goods that are
13
intended to be exported.
14
A false trade description must not be applied to prescribed goods
15
that are intended to be exported.
16
Goods to which a false trade description has been applied must not
17
be entered for export, put on an aircraft or vessel for export,
18
brought to a place for the purpose of being exported, or exported.
19
Other matters relating to export
Chapter 8
Trade descriptions
Part 2
Trade descriptions for prescribed goods
Division 2
Section 246
No. , 2019
Export Control Bill 2019
271
Division 2--Trade descriptions for prescribed goods
1
246 Meaning of
trade description
2
(1) A
trade description
for goods is a description or statement
3
(whether in English or any other language), or a pictorial
4
representation, indication or suggestion (direct or indirect), as to
5
any of the following:
6
(a) the nature, number, quantity, quality, purity, class, grade,
7
breed, measure, gauge, size, mass, colour, strength, sex,
8
variety, genus, species or age of the goods;
9
(b) the country or place where the goods were made, produced or
10
grown;
11
(c) the exporter, manufacturer or producer of the goods;
12
(d) the person by whom the goods were selected or in any way
13
prepared;
14
(e) the method, time or place of manufacturing, producing,
15
selecting or otherwise preparing the goods;
16
(f) the time before which, or period within which, the goods are
17
to be used;
18
(g) the batch, lot or other grouping in which the goods are
19
included;
20
(h) the material or ingredients of which the goods are composed
21
or from which they are derived;
22
(i) the goods being the subject of an existing patent or privilege.
23
(2) A
trade description
for goods includes a mark that, according to
24
the custom of the trade or common repute, is commonly taken to
25
be an indication of any of the matters referred to in subsection (1).
26
Note:
Mark
includes a stamp, seal and label (see the definition of
mark
in
27
section 12).
28
247 When a trade description is applied to goods
29
A trade description is
applied
to goods if the trade description is:
30
(a) applied directly to the goods, their packaging or anything
31
containing the goods; or
32
Chapter 8
Other matters relating to export
Part 2
Trade descriptions
Division 2
Trade descriptions for prescribed goods
Section 248
272
Export Control Bill 2019
No. , 2019
(b) applied to anything attached to the goods, their packaging or
1
anything containing the goods; or
2
(c) inserted into anything in which the goods are packaged or
3
anything containing the goods; or
4
(d) applied to, or stated in, any document relating to the goods;
5
or
6
(e) applied to any covering, label, reel or other thing used in
7
connection with the goods; or
8
(f) applied in any way prescribed by the rules; or
9
(g) applied in any other way likely to lead to the belief that it
10
describes or designates the goods.
11
248 Rules may make provision in relation to trade descriptions
12
(1) The rules may make provision for and in relation to trade
13
descriptions for prescribed goods that are intended to be exported.
14
(2) Without limiting subsection (1), the rules may:
15
(a) require a trade description to be applied to prescribed goods
16
that are intended to be exported; and
17
(b) make provision for and in relation to the following:
18
(i) the content of trade descriptions;
19
(ii) the accuracy and legibility of trade descriptions;
20
(iii) the methods for applying trade descriptions;
21
(iv) trade descriptions that are in a language other than
22
English;
23
(v) the use of additional information or pictures with trade
24
descriptions.
25
249 Conduct that contravenes rules
26
(1) A person contravenes this subsection if:
27
(a) the person engages in conduct; and
28
(b) the conduct contravenes a rule made for the purposes of
29
section 248.
30
Note:
The physical elements of an offence against subsection (2) are set out
31
in this subsection (see section 370).
32
Other matters relating to export
Chapter 8
Trade descriptions
Part 2
Trade descriptions for prescribed goods
Division 2
Section 250
No. , 2019
Export Control Bill 2019
273
Fault-based offence
1
(2) A person commits an offence if the person contravenes
2
subsection (1).
3
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
4
Civil penalty provision
5
(3) A person is liable to a civil penalty if the person contravenes
6
subsection (1).
7
Civil penalty:
600 penalty units.
8
250 Alteration of or interference with trade description
9
Alterations or interferences before export permit issued
10
(1) A person (other than an authorised officer) must not alter or
11
interfere with (whether by way of addition, removal, defacement or
12
otherwise) a trade description applied to prescribed goods that are
13
intended to be exported and for which an export permit has not
14
been issued, unless the alteration or interference is done in
15
accordance with:
16
(a) a direction given to the person by an authorised officer; or
17
(b) an approved arrangement covering the goods; or
18
(c) a written approval given to the person by the Secretary.
19
Note:
If a trade description applied to prescribed goods is altered or
20
interfered with other than in accordance with this subsection, the
21
Secretary may refuse to issue an export permit for the goods
(see
22
section 225).
23
Alterations or interferences after export permit issued
24
(2) A person (other than an authorised officer) contravenes this
25
subsection if:
26
(a) a trade description is applied to a kind of prescribed goods;
27
and
28
(b) the goods are intended to be exported; and
29
Chapter 8
Other matters relating to export
Part 2
Trade descriptions
Division 2
Trade descriptions for prescribed goods
Section 250
274
Export Control Bill 2019
No. , 2019
(c) the person alters or interferes with (whether by way of
1
addition, removal, defacement or otherwise) the trade
2
description; and
3
(d) the alteration or interference occurs:
4
(i) after an export permit has been issued for the goods; and
5
(ii) before the goods have been exported; and
6
(e) none of the following authorises the alteration or
7
interference:
8
(i) a direction given to the person by an authorised officer;
9
(ii) an approved arrangement covering the goods;
10
(iii) a written approval given to the person by the Secretary.
11
Note:
The physical elements of an offence against subsection (3) are set out
12
in this subsection (see section 370).
13
Fault-based offence
14
(3) A person commits an offence if the person contravenes
15
subsection (2).
16
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
17
Civil penalty provision
18
(4) A person is liable to a civil penalty if the person contravenes
19
subsection (2).
20
Civil penalty:
240 penalty units.
21
Other matters relating to export
Chapter 8
Trade descriptions
Part 2
False trade descriptions for prescribed goods
Division 3
Section 251
No. , 2019
Export Control Bill 2019
275
Division 3--False trade descriptions for prescribed goods
1
251 Meaning of
false trade description
2
A trade description for goods is a
false trade description
for the
3
goods if the description is false or likely to mislead in a material
4
respect due to:
5
(a) anything contained in or omitted from the description; or
6
(b) any alteration of or interference with the description (whether
7
by way of addition, removal, defacement or otherwise).
8
252 False trade description must not be applied to prescribed goods
9
Person must not knowingly apply a false trade description
10
(1) A person contravenes this subsection if:
11
(a) the person applies a trade description to goods; and
12
(b) the goods are prescribed goods; and
13
(c) the goods are intended to be exported; and
14
(d) the trade description is a false trade description for the goods;
15
and
16
(e) the person knows that the trade description is a false trade
17
description for the goods.
18
Note:
The physical elements of an offence against subsection (2) are set out
19
in this subsection (see section 370).
20
Fault-based offence
21
(2) A person commits an offence if the person contravenes
22
subsection (1).
23
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
24
(3) For the purposes of subsection (2), strict liability applies to
25
paragraph (1)(b).
26
Chapter 8
Other matters relating to export
Part 2
Trade descriptions
Division 3
False trade descriptions for prescribed goods
Section 253
276
Export Control Bill 2019
No. , 2019
Civil penalty provision
1
(4) A person is liable to a civil penalty if the person contravenes
2
subsection (1).
3
Civil penalty:
600 penalty units.
4
Person must not recklessly apply a false trade description
5
(5) A person contravenes this subsection if:
6
(a) the person applies a trade description to goods; and
7
(b) the goods are prescribed goods; and
8
(c) the goods are intended to be exported; and
9
(d) the trade description is a false trade description for the goods.
10
Note:
The physical elements of an offence against subsection (6) are set out
11
in this subsection (see section 370).
12
Fault-based offence
13
(6) A person commits an offence if the person contravenes
14
subsection (5).
15
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
16
(7) For the purposes of subsection (6), strict liability applies to
17
paragraph (5)(b).
18
Civil penalty provision
19
(8) A person is liable to a civil penalty if the person contravenes
20
subsection (5).
21
Civil penalty:
240 penalty units.
22
253 Goods with false trade description must not be exported etc.
23
(1) A person contravenes this subsection if:
24
(a) the person:
25
(i) enters goods for export; or
26
(ii) puts goods on any aircraft or vessel for export; or
27
Other matters relating to export
Chapter 8
Trade descriptions
Part 2
False trade descriptions for prescribed goods
Division 3
Section 253
No. , 2019
Export Control Bill 2019
277
(iii) brings goods to any landing place, port or other place
1
for the purpose of being exported; or
2
(iv) exports goods; and
3
(b) the goods are prescribed goods; and
4
(c) the goods have a trade description applied to them; and
5
(d) the trade description is a false trade description for the goods.
6
Note:
The physical elements of an offence against subsection (2) are set out
7
in this subsection (see section 370).
8
Fault-based offence
9
(2) A person commits an offence if the person contravenes
10
subsection (1).
11
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
12
(3) For the purposes of subsection (2), strict liability applies to
13
paragraph (1)(b).
14
Civil penalty provision
15
(4) A person is liable to a civil penalty if the person contravenes
16
subsection (1).
17
Civil penalty:
240 penalty units.
18
Chapter 8
Other matters relating to export
Part 3
Official marks
Division 1
Introduction
Section 254
278
Export Control Bill 2019
No. , 2019
Part 3--Official marks
1
Division 1--Introduction
2
254 Simplified outline of this Part
3
The rules may make provision for and in relation to the following:
4
(a)
marks that are to be official marks for the purposes of
5
this Act and other matters relating to official marks;
6
(b)
resemblances of official marks and other matters relating
7
to resemblances;
8
(c)
official marking devices.
9
A person must not engage in conduct that contravenes rules made
10
for the purposes of this Part.
11
A false, misleading or deceptive official mark must not be applied
12
to goods that are intended to be exported, or to a document that
13
relates to goods that are intended to be exported or to trade with
14
another country.
15
An official mark that is applied to goods that are intended to be
16
exported, or to a document that relates to goods that are intended to
17
be exported or to trade with another country, must not be altered so
18
as to be misleading or deceptive.
19
Other matters relating to export
Chapter 8
Official marks
Part 3
Rule-making powers
Division 2
Section 255
No. , 2019
Export Control Bill 2019
279
Division 2--Rule-making powers
1
255 Official marks
2
(1) The rules may provide that a specified mark is an official mark for
3
the purposes of this Act.
4
Note 1:
Mark
includes a stamp, seal and label (see the definition of
mark
in
5
section 12).
6
Note 2:
The export of particular kinds of prescribed goods may be prohibited
7
unless an official mark is applied to the goods (see section 29 and
8
rules made for the purposes of that section).
9
(2) The rules may make provision for and in relation to the following:
10
(a) the persons, or classes of persons, who may manufacture,
11
possess, apply, alter or interfere with an official mark;
12
(b) the methods for applying official marks;
13
(c) the circumstances in which an official mark may, or must
14
not, be applied;
15
(d) security of official marks;
16
(e) removal or defacement of official marks;
17
(f) making records in relation to official marks;
18
(g) any other matter relating to official marks.
19
256 Marks resembling official marks
20
(1) The rules may make provision for and in relation to marks
21
(
resemblances
) that resemble an official mark or are apparently
22
intended to resemble or pass for an official mark.
23
(2) Without limiting subsection (1), the rules may make provision for
24
and in relation to the following:
25
(a) the circumstances in which a mark resembles an official
26
mark;
27
(b) the persons, or classes of persons, who may apply a
28
resemblance;
29
(c) the methods for applying resemblances;
30
Chapter 8
Other matters relating to export
Part 3
Official marks
Division 2
Rule-making powers
Section 257
280
Export Control Bill 2019
No. , 2019
(d) the circumstances in which a resemblance may, or must not,
1
be applied.
2
257 Official marking devices
3
Meaning of
official marking device
4
(1) An
official marking device
is a device that is capable of being used
5
to apply an official mark, but does not include a device prescribed
6
by the rules.
7
Rules may make provision in relation to official marking devices
8
(2) The rules may make provision for and in relation to the following:
9
(a) the persons, or classes of persons, who may manufacture or
10
possess an official marking device;
11
(b) the use of official marking devices;
12
(c) security of official marking devices;
13
(d) damaged official marking devices;
14
(e) destruction of official marking devices;
15
(f) making records in relation to official marking devices;
16
(g) any other matter relating to official marking devices.
17
Other matters relating to export
Chapter 8
Official marks
Part 3
Offences and civil penalty provisions
Division 3
Section 258
No. , 2019
Export Control Bill 2019
281
Division 3--Offences and civil penalty provisions
1
258 Conduct that contravenes rules
2
(1) A person contravenes this subsection if:
3
(a) the person engages in conduct; and
4
(b) the conduct contravenes a rule made for the purposes of a
5
provision in Division 2.
6
Note:
The physical elements of an offence against subsection (2) are set out
7
in this subsection (see section 370).
8
Fault-based offence
9
(2) A person commits an offence if the person contravenes
10
subsection (1).
11
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
12
Civil penalty provision
13
(3) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Civil penalty:
600 penalty units.
16
259 Applying a false, misleading or deceptive official mark to goods
17
(1) A person contravenes this subsection if:
18
(a) the person applies an official mark to goods; and
19
(b) the goods are intended to be exported; and
20
(c) the official mark is false, misleading or deceptive.
21
Note:
The physical elements of an offence against subsection (2) are set out
22
in this subsection (see section 370).
23
Fault-based offence
24
(2) A person commits an offence if the person contravenes
25
subsection (1).
26
Chapter 8
Other matters relating to export
Part 3
Official marks
Division 3
Offences and civil penalty provisions
Section 260
282
Export Control Bill 2019
No. , 2019
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
1
Civil penalty provision
2
(3) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
600 penalty units.
5
260 Applying a false, misleading or deceptive official mark to a
6
document
7
(1) A person contravenes this subsection if:
8
(a) the person applies an official mark to a document; and
9
(b) the document relates to:
10
(i) goods that are intended to be exported; or
11
(ii) trade with another country; and
12
(c) the official mark is false, misleading or deceptive.
13
Note:
The physical elements of an offence against subsection (2) are set out
14
in this subsection (see section 370).
15
Fault-based offence
16
(2) A person commits an offence if the person contravenes
17
subsection (1).
18
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
19
Civil penalty provision
20
(3) A person is liable to a civil penalty if the person contravenes
21
subsection (1).
22
Civil penalty:
600 penalty units.
23
261 Conduct that results in official mark applied to goods being
24
altered to be false, misleading or deceptive
25
(1) A person contravenes this subsection if:
26
(a) the person engages in conduct; and
27
Other matters relating to export
Chapter 8
Official marks
Part 3
Offences and civil penalty provisions
Division 3
Section 262
No. , 2019
Export Control Bill 2019
283
(b) the conduct has the result that an official mark applied to
1
goods is altered so as to be false, misleading or deceptive;
2
and
3
(c) the goods are intended to be exported.
4
Note:
The physical elements of an offence against subsection (2) are set out
5
in this subsection (see section 370).
6
Fault-based offence
7
(2) A person commits an offence if the person contravenes
8
subsection (1).
9
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
10
Civil penalty provision
11
(3) A person is liable to a civil penalty if the person contravenes
12
subsection (1).
13
Civil penalty:
600 penalty units.
14
262 Conduct that results in official mark applied to a document
15
being altered to be false, misleading or deceptive
16
(1) A person contravenes this subsection if:
17
(a) the person engages in conduct; and
18
(b) the conduct has the result that an official mark applied to a
19
document is altered so as to be false, misleading or deceptive;
20
and
21
(c) the document relates to:
22
(i) goods that are intended to be exported; or
23
(ii) trade with another country.
24
Note:
The physical elements of an offence against subsection (2) are set out
25
in this subsection (see section 370).
26
Fault-based offence
27
(2) A person commits an offence if the person contravenes
28
subsection (1).
29
Chapter 8
Other matters relating to export
Part 3
Official marks
Division 3
Offences and civil penalty provisions
Section 262
284
Export Control Bill 2019
No. , 2019
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
1
Civil penalty provision
2
(3) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
600 penalty units.
5
Other matters relating to export
Chapter 8
Tariff rate quotas
Part 4
Introduction
Division 1
Section 263
No. , 2019
Export Control Bill 2019
285
Part 4--Tariff rate quotas
1
Division 1--Introduction
2
263 Simplified outline of this Part
3
The rules may make provision for and in relation to the
4
establishment and administration of a system, or systems, of tariff
5
rate quotas for the export of goods.
6
The Secretary may give written directions to be complied with by a
7
particular person or body in relation to a matter covered by rules
8
made for the purposes of this Part.
9
Chapter 8
Other matters relating to export
Part 4
Tariff rate quotas
Division 2
Tariff rate quota systems
Section 264
286
Export Control Bill 2019
No. , 2019
Division 2--Tariff rate quota systems
1
264 Tariff rate quota systems
2
(1) The rules may make provision for and in relation to the
3
establishment and administration of a system, or systems, of tariff
4
rate quotas for the export of goods.
5
(2) Without limiting subsection (1), the rules may make provision for
6
and in relation to the following:
7
(a) determining the amount of tariff rate quota for the export of
8
goods for a period;
9
(b) methods for determining tariff rate quota entitlements for the
10
export of goods;
11
(c) establishing and maintaining a register of tariff rate quota
12
entitlements;
13
(d) surrender, transfer, variation, and revocation of tariff rate
14
quota entitlements;
15
(e) tariff rate quota certificates, including revocation of
16
certificates;
17
(f) imposing conditions, including variation and revocation of
18
conditions;
19
(g) auditing and reporting requirements.
20
(3) The Secretary may give written directions to be complied with by a
21
particular person or body in relation to a matter covered by rules
22
made for the purposes of this section.
23
Note:
See also section 309 (general provisions relating to directions).
24
(4) If a direction given under this section is inconsistent with rules
25
made for the purposes of this section, the direction prevails and the
26
rules, to the extent of the inconsistency, do not have any effect.
27
Powers and officials
Chapter 9
Audits
Part 1
Introduction
Division 1
Section 265
No. , 2019
Export Control Bill 2019
287
Chapter 9--Powers and officials
1
Part 1--Audits
2
Division 1--Introduction
3
265 Simplified outline of this Part
4
The Secretary may require an audit to be conducted:
5
(a)
of export operations carried out in certain circumstances;
6
or
7
(b)
in relation to the performance of functions and the
8
exercise of powers under this Act by certain persons.
9
An audit may be conducted by an authorised officer or an approved
10
auditor. An approved auditor is a person, or a person included in a
11
class of persons, approved by the Secretary or a person included in
12
a class of persons specified by the rules.
13
The Secretary may require a single audit, or a program of audits, to
14
be conducted.
15
Notice of an audit is not required to be given. However, an auditor
16
must comply with the requirements provided by this Part or the
17
rules in relation to the conduct of an audit.
18
An auditor may exercise certain powers for the purpose of
19
conducting an audit.
20
An approved auditor may charge a fee in relation to things done in
21
the performance of the approved auditor's functions or the exercise
22
of the approved auditor's powers under this Act.
23
Chapter 9
Powers and officials
Part 1
Audits
Division 2
General
Section 266
288
Export Control Bill 2019
No. , 2019
Division 2--General
1
266 Audits of export operations
2
Export operations in relation to which audit may be required
3
(1) The Secretary may require an audit to be conducted of any of the
4
following:
5
(a) export operations carried out at an accredited property or
6
covered by the accreditation of the property;
7
(b) export operations carried out at a registered establishment or
8
covered by the registration of the establishment;
9
(c) export operations covered by an approved arrangement;
10
(d) export operations covered by an export licence;
11
(e) export operations carried out in relation to a kind of
12
prescribed goods by:
13
(i) a person who has applied for an export permit in
14
relation to the goods; or
15
(ii) a person to whom an export permit for the goods has
16
been issued (whether or not the permit has been
17
suspended or revoked);
18
(f) export operations carried out in relation to a kind of goods
19
by:
20
(i) a person who has applied for a government certificate or
21
a tariff rate quota certificate in relation to the goods; or
22
(ii) a person to whom a government certificate or a tariff
23
rate quota certificate in relation to the goods has been
24
issued (whether or not the certificate has been revoked);
25
(g) export operations carried out in any other circumstances
26
prescribed by the rules.
27
Matters to which audit must relate
28
(2) An audit under subsection (1) must relate to one or more of the
29
following matters:
30
Powers and officials
Chapter 9
Audits
Part 1
General
Division 2
Section 266
No. , 2019
Export Control Bill 2019
289
(a) whether a kind of export operations or a kind of goods
1
comply, have complied, or will comply with a requirement of
2
this Act that relates to the export operations or the goods;
3
(b) whether an importing country requirement relating to a kind
4
of export operations or a kind of goods is being, has been, or
5
will be met;
6
(c) whether a kind of export operations are being, have been or
7
will be carried out in accordance with an approved
8
arrangement;
9
(d) whether any of the following are being, have been, or are
10
likely to be complied with:
11
(i) conditions of the accreditation of a property;
12
(ii) conditions of the registration of an establishment;
13
(iii) conditions of an approved arrangement;
14
(iv) conditions of an export licence;
15
(v) conditions of an export permit;
16
(e) whether a matter stated, or to be stated, in a government
17
certificate or a tariff rate quota certificate in relation to a kind
18
of goods is correct;
19
(f) any other matter relating to the operation of this Act
20
prescribed by the rules.
21
(3) An audit under subsection (1) may deal with anything that is:
22
(a) reasonably necessary for the effective conduct of the audit; or
23
(b) incidental to the matter to which the audit relates.
24
Period during which certain audits may be conducted
25
(4) An audit of export operations carried out in relation to a kind of
26
non-prescribed goods by a person referred to in
27
subparagraph (1)(f)(ii) may be conducted at any time during the
28
period of 18 months after a government certificate or a tariff rate
29
quota certificate in relation to goods of that kind was issued to the
30
person.
31
Who may conduct audit
32
(5) An audit under this section may be conducted by:
33
Chapter 9
Powers and officials
Part 1
Audits
Division 2
General
Section 267
290
Export Control Bill 2019
No. , 2019
(a) an authorised officer; or
1
(b) an approved auditor.
2
267 Audits in relation to persons performing functions or exercising
3
powers under this Act
4
(1) The Secretary may require an audit to be conducted in relation to:
5
(a) the performance of functions and the exercise of powers
6
under this Act by a person who is, or was, any of the
7
following:
8
(i) a third party authorised officer (including a person
9
whose authorisation as a third party authorised officer
10
is, or was, suspended under section 296 or 298C);
11
(ii) an approved auditor;
12
(iii) an approved assessor;
13
(iv) an accredited veterinarian;
14
(v) any other person (other than a Commonwealth
15
authorised officer or a State or Territory authorised
16
officer) who performs or performed functions, or
17
exercises or exercised powers, under this Act; or
18
(b) compliance by a person referred to any of
19
subparagraphs (a)(i) to (iv) with the conditions applying to
20
the performance of functions or the exercise of powers by the
21
person under this Act.
22
Who may conduct audit
23
(2) An audit under this section may be conducted by:
24
(a) a Commonwealth authorised officer; or
25
(b) a person prescribed by rules made for the purposes of
26
subsection (3).
27
(3) The rules may prescribe any of the following for the purposes of
28
paragraph (2)(b):
29
(a) a State or Territory authorised officer;
30
(b) a third party authorised officer;
31
(c) an approved auditor.
32
Powers and officials
Chapter 9
Audits
Part 1
General
Division 2
Section 268
No. , 2019
Export Control Bill 2019
291
268 Single audit or program of audits may be required
1
The Secretary may require, under section 266 or 267, a single
2
audit, or a program of audits, to be conducted in relation to a
3
specified matter or matters included in a specified class of matters.
4
Note:
If the Secretary has required a program of audits to be conducted in
5
relation to a matter, the Secretary may also require additional audits to
6
be conducted in relation to the matter (see subsection 33(1) of the
Acts
7
Interpretation Act 1901
).
8
269 Relevant person for an audit
9
The
relevant person
for an audit under this Part is as follows:
10
(a) for an audit of export operations carried out at an accredited
11
property or covered by the accreditation of the property--the
12
manager of the property;
13
(b) for an audit of export operations carried out at a registered
14
establishment or covered by the registration of the
15
establishment--the occupier of the establishment;
16
(c) for an audit of export operations covered by an approved
17
arrangement--the holder of the approved arrangement;
18
(d) for an audit of export operations covered by an export
19
licence--the holder of the export licence;
20
(e) for an audit of export operations carried out in relation to a
21
kind of prescribed goods by a person who has applied for an
22
export permit for the goods--the person who applied for the
23
export permit;
24
(f) for an audit of export operations carried out in relation to a
25
kind of prescribed goods by a person to whom an export
26
permit for the goods has been issued--the person to whom
27
the export permit was issued;
28
(g) for an audit of export operations carried out in relation to a
29
kind of goods by a person who has applied for a government
30
certificate or a tariff rate quota certificate in relation to the
31
goods--the person who applied for the certificate;
32
(h) for an audit of export operations carried out in relation to a
33
kind of goods by a person to whom a government certificate
34
or a tariff rate quota certificate in relation to the goods has
35
been issued--the person to whom the certificate was issued;
36
Chapter 9
Powers and officials
Part 1
Audits
Division 2
General
Section 270
292
Export Control Bill 2019
No. , 2019
(i) for an audit of export operations carried out in circumstances
1
prescribed by rules made for the purposes of
2
paragraph 266(1)(g)--the person who carried out the export
3
operations;
4
(j) for an audit under section 267--the person to whom the audit
5
relates.
6
270 Conduct of audit
7
(1) The Secretary need not give notice of an audit required under this
8
Part.
9
(2) Before starting to conduct an audit, an auditor must give the
10
relevant person for the audit a description of the scope of the audit.
11
(3) Before entering premises to conduct an audit, an auditor must show
12
the auditor's identity card to the relevant person for the audit, or
13
another person who apparently represents the relevant person for
14
the audit, if:
15
(a) the relevant person for the audit or the other person requests
16
the auditor to do so; or
17
(b) notice of the audit was not given to the relevant person for
18
the audit.
19
Rules may make provision in relation to other matters
20
(4) The rules may make provision for and in relation to:
21
(a) other matters relating to the conduct of an audit; and
22
(b) the process to be followed after an audit has been completed.
23
(5) Without limiting subsection (4), the rules may make provision for
24
and in relation to the following:
25
(a) information that must be provided to the relevant person for
26
the audit during the audit or after the audit is completed;
27
(b) requirements for, and in relation to, reports to be provided in
28
relation to an audit;
29
(c) actions the Secretary may require the relevant person for the
30
audit to take after the audit has been completed.
31
Powers and officials
Chapter 9
Audits
Part 1
General
Division 2
Section 271
No. , 2019
Export Control Bill 2019
293
271 Relevant person for an audit must provide assistance
1
The relevant person for an audit must provide the auditor with the
2
facilities and assistance that are reasonably necessary for the
3
conduct of the audit.
4
Note:
A failure to comply with this section is a ground for suspension or
5
revocation of the accreditation of a property, the registration of an
6
establishment, an approved arrangement or an export licence (see
7
subparagraphs 94(1)(d)(iii), 102(1)(d)(iii), 127(1)(g)(iii),
8
138(1)(g)(iii), 171(1)(h)(iii), 179(1)(h)(iii), 205(1)(e)(iii) and
9
212(1)(e)(iii)).
10
272 Powers of auditors
11
(1) For the purpose of conducting an audit under this Part, an auditor
12
may do anything the auditor considers necessary, including the
13
following:
14
(a) request a person who the auditor reasonably believes has
15
information or documents that are relevant to the audit to
16
answer questions, provide information in writing, or produce
17
the documents;
18
(b) take samples of goods, or from equipment or other things
19
used in export operations or other operations, to which the
20
audit relates;
21
(c) if the auditor is an authorised officer--take, test or analyse
22
samples of goods, or from equipment or other things used in
23
export operations or other operations, to which the audit
24
relates;
25
(d) arrange for another person with appropriate qualifications or
26
expertise to take
,
test or analyse samples of goods, or from
27
equipment or other things used in export operations or other
28
operations, to which the audit relates.
29
Note 1:
An auditor who is an authorised officer may also give a direction
30
under section 305.
31
Note 2:
See Division 2 of Part 6 of Chapter 11 in relation to taking, testing and
32
analysing samples.
33
Note 3:
A person may commit an offence or be liable to a civil penalty if the
34
person provides false or misleading information or documents (see
35
sections 137.1 and 137.2 of the
Criminal Code
and sections 368 and
36
369 of this Act).
37
Chapter 9
Powers and officials
Part 1
Audits
Division 2
General
Section 272
294
Export Control Bill 2019
No. , 2019
(2) An auditor:
1
(a) may make copies of, or take extracts from, a document or
2
record produced under paragraph (1)(a); and
3
(b) for that purpose, may remove the document or record from
4
the place where it was produced.
5
Powers and officials
Chapter 9
Audits
Part 1
Approved auditors
Division 3
Section 273
No. , 2019
Export Control Bill 2019
295
Division 3--Approved auditors
1
273 Secretary may approve persons to conduct audits
2
(1) The Secretary may, in writing, approve a person, or each person in
3
a specified class of persons, to conduct audits under this Part.
4
(2) An instrument of approval under subsection (1) is not a legislative
5
instrument.
6
(3) The Secretary must not approve a person to conduct audits under
7
this Part unless the Secretary is satisfied that:
8
(a) the person satisfies the training and qualification
9
requirements determined under subsection (4); or
10
(b) the person will satisfy those training and qualification
11
requirements before the person conducts any audits under
12
this Part.
13
(4) The Secretary must determine, in writing, training and qualification
14
requirements for persons to conduct audits under this Part.
15
(5) A determination under subsection (4) is not a legislative
16
instrument.
17
(6) The rules may make provision for and in relation to matters
18
relating to the approval of persons under subsection (1).
19
(7) Without limiting subsection (6), the rules may make provision for
20
and in relation to the following:
21
(a) applications for approval;
22
(b) dealing with such applications;
23
(c) additional requirements that must be met for approval;
24
(d) matters to which the Secretary may or must have regard in
25
considering an application for approval;
26
(e) conditions of an approval;
27
(f) the period of effect of an approval;
28
(g) assessment of the competency of applicants;
29
(h) suspension and revocation of an approval.
30
Chapter 9
Powers and officials
Part 1
Audits
Division 3
Approved auditors
Section 274
296
Export Control Bill 2019
No. , 2019
274 Rules may provide for classes of persons to be auditors
1
The rules may provide that a person included in a specified class of
2
persons is approved to conduct audits under this Part.
3
275 Approved auditors may charge fees
4
(1) An approved auditor may charge a fee under this section in relation
5
to things done in the performance of the approved auditor's
6
functions or the exercise of the approved auditor's powers under
7
this Act.
8
(2) A fee must not be such as to amount to taxation.
9
Powers and officials
Chapter 9
Assessment of goods
Part 2
Introduction
Division 1
Section 276
No. , 2019
Export Control Bill 2019
297
Part 2--Assessment of goods
1
Division 1--Introduction
2
276 Simplified outline of this Part
3
An assessment of goods may be carried out under this Part only if
4
the assessment is required or permitted to be carried out under this
5
Act.
6
The purpose of carrying out an assessment of goods under this
7
Part is to verify:
8
(a)
that the requirements of this Act in relation to the goods
9
have been, or will be, complied with; or
10
(b)
that importing country requirements relating to the
11
goods have been, or will be, met; or
12
(c)
that a matter stated, or to be stated, in a government
13
certificate in relation to the goods is true and correct.
14
An assessment of goods may be carried out by an authorised
15
officer or an approved assessor. An approved assessor is a person,
16
or a person included in a class of persons, approved by the
17
Secretary or a person included in a class of persons specified by the
18
rules.
19
An assessment of goods must be carried out in accordance with the
20
rules.
21
An assessor may exercise certain powers in carrying out an
22
assessment.
23
An approved assessor may charge a fee in relation to things done in
24
the performance of the approved assessor's functions or the
25
exercise of the approved assessor's powers under this Act.
26
Chapter 9
Powers and officials
Part 2
Assessment of goods
Division 2
General
Section 277
298
Export Control Bill 2019
No. , 2019
Division 2--General
1
277 Circumstances in which an assessment may be carried out etc.
2
Circumstances in which assessment may be carried out
3
(1) An assessment of goods may be carried out under this Part only if
4
the assessment is required or permitted to be carried out under this
5
Act (including under rules made for the purposes of
6
subsection (2)).
7
Note:
For example, the Secretary may require an assessment of goods to be
8
carried out for the purpose of deciding whether to issue:
9
(a) a government certificate in relation to goods (see
10
paragraph 68(c)); or
11
(b) an export permit for a kind of prescribed goods (see
12
paragraph 241(c)).
13
(2) The rules may prescribe circumstances in which the Secretary may
14
require or permit an assessment of goods to be carried out under
15
this Part.
16
Purpose of assessment
17
(3) The purpose of carrying out an assessment of goods under this
18
Part is to verify one or more of the following:
19
(a) that the requirements of this Act in relation to the export of
20
the goods have been complied with, or will be complied with
21
before the goods are imported into the importing country;
22
(b) that the importing country requirements relating to the goods
23
have been met, or will be met before the goods are imported
24
into the importing country;
25
(c) that a matter stated, or to be stated, in a government
26
certificate in relation to the goods is true and correct.
27
(4) An assessment of goods under this Part may also deal with
28
anything that is:
29
(a) reasonably necessary for the effective conduct of the
30
assessment; or
31
(b) incidental to the matter to which the assessment relates.
32
Powers and officials
Chapter 9
Assessment of goods
Part 2
General
Division 2
Section 278
No. , 2019
Export Control Bill 2019
299
Who may carry out assessment
1
(5) An assessment of goods under this Part may be carried out by:
2
(a) an authorised officer; or
3
(b) an approved assessor.
4
Note:
For
approved assessor
, see section 12.
5
278 Relevant person for an assessment of goods
6
The
relevant person
for an assessment of goods under this Part is
7
as follows:
8
(a) for an assessment of goods in relation to which an application
9
has been made under this Act--the applicant;
10
(b) for an assessment of goods in relation to which a government
11
certificate has been issued--the holder of the government
12
certificate;
13
(c) for an assessment of goods for which an export permit has
14
been issued--the holder of the export permit;
15
(d) for an assessment of goods in relation to which a notice of
16
intention to export has been given--the person who gave the
17
notice;
18
(e) for an assessment of goods in any other circumstances
19
prescribed by the rules--the person prescribed by the rules.
20
279 Process for carrying out an assessment of goods etc.
21
(1) The rules may make provision for and in relation to:
22
(a) the carrying out of an assessment of goods; and
23
(b) the process to be followed after an assessment has been
24
completed.
25
(2) Without limiting subsection (1), the rules may make provision for
26
and in relation to the following:
27
(a) the process to be followed during an assessment of goods;
28
(b) requirements for, and in relation to, documents to be
29
provided in relation to an assessment of goods (including
30
statements verifying the results of the assessment);
31
Chapter 9
Powers and officials
Part 2
Assessment of goods
Division 2
General
Section 280
300
Export Control Bill 2019
No. , 2019
(c) information that must be provided to the relevant person for
1
an assessment of goods during the assessment or after the
2
assessment is completed;
3
(d) actions the Secretary may require the relevant person for an
4
assessment of goods to take after the assessment has been
5
completed.
6
280 Powers that may be exercised in carrying out an assessment of
7
goods
8
(1) For the purpose of carrying out an assessment of goods under this
9
Part, an assessor may do anything the assessor considers necessary,
10
including the following:
11
(a) request a person who the assessor reasonably believes has
12
information or documents that are relevant to the assessment
13
to answer questions, provide information in writing, or
14
produce the documents;
15
(b) take, test or analyse samples of the goods;
16
(c) arrange for another person with appropriate qualifications or
17
expertise to take, test or analyse samples of the goods.
18
Note 1:
An assessor who is an authorised officer may also give a direction
19
under section 305.
20
Note 2:
See Division 2 of Part 6 of Chapter 11 in relation to taking, testing and
21
analysing samples.
22
Note 3:
A person may commit an offence or be liable to a civil penalty if the
23
person provides false or misleading information or documents (see
24
sections 137.1 and 137.2 of the
Criminal Code
and sections 368 and
25
369 of this Act).
26
(2) An assessor:
27
(a) may make copies of, or take extracts from, a document
28
produced under paragraph (1)(a); and
29
(b) for that purpose, may remove the document from the place
30
where it was produced.
31
Note:
If the relevant person for an assessment of goods does not comply
32
with a request under this section, it may not be possible to verify a
33
matter referred to in subsection 277(3). As a result, the Secretary may,
34
for example, refuse to issue a government certificate in relation to the
35
Powers and officials
Chapter 9
Assessment of goods
Part 2
General
Division 2
Section 280
No. , 2019
Export Control Bill 2019
301
goods (see section 67) or an export permit for the goods (see
1
section 225).
2
Chapter 9
Powers and officials
Part 2
Assessment of goods
Division 3
Approved assessors
Section 281
302
Export Control Bill 2019
No. , 2019
Division 3--Approved assessors
1
281 Secretary may approve persons to carry out assessments of
2
goods
3
(1) The Secretary may, in writing, approve a person, or each person in
4
a specified class of persons, to carry out assessments of goods
5
under this Part.
6
(2) An instrument of approval under subsection (1) is not a legislative
7
instrument.
8
(3) The Secretary must not approve a person to carry out assessments
9
of goods under this Part unless the Secretary is satisfied that:
10
(a) the person satisfies the training and qualification
11
requirements determined under subsection (4); or
12
(b) the person will satisfy those training and qualification
13
requirements before the person carries out any assessments
14
under this Part.
15
(4) The Secretary must determine, in writing, training and qualification
16
requirements for persons to carry out assessments of goods under
17
this Part.
18
(5) A determination under subsection (4) is not a legislative
19
instrument.
20
(6) The rules may make provision for and in relation to matters
21
relating to the approval of persons under subsection (1).
22
(7) Without limiting subsection (6), the rules may make provision for
23
and in relation to the following:
24
(a) applications for approval;
25
(b) dealing with such applications;
26
(c) additional requirements that must be met for approval;
27
(d) matters to which the Secretary may or must have regard in
28
considering an application for approval;
29
(e) conditions of an approval;
30
(f) the period of effect of an approval;
31
Powers and officials
Chapter 9
Assessment of goods
Part 2
Approved assessors
Division 3
Section 282
No. , 2019
Export Control Bill 2019
303
(g) assessment of the competency of applicants;
1
(h) suspension and revocation of an approval.
2
282 Rules may provide for classes of persons to be assessors
3
The rules may provide that a person included in a specified class of
4
persons is approved to carry out assessments of goods under this
5
Part.
6
283 Approved assessors may charge fees
7
(1) An approved assessor may charge a fee under this section in
8
relation to things done in the performance of the approved
9
assessor's functions or the exercise of the approved assessor's
10
powers under this Act.
11
(2) A fee must not be such as to amount to taxation.
12
Chapter 9
Powers and officials
Part 3
Powers of the Secretary
Division 1
Introduction
Section 284
304
Export Control Bill 2019
No. , 2019
Part 3--Powers of the Secretary
1
Division 1--Introduction
2
284 Simplified outline of this Part
3
The Secretary may require a person to give the Secretary
4
information or documents that relate to:
5
(a)
any prescribed goods that have been, or are intended to
6
be, exported; or
7
(b)
certain other kinds of goods that have been exported; or
8
(c)
non-prescribed goods in relation to which an application
9
for a government certificate or a tariff rate quota
10
certificate has been made or a government certificate or
11
tariff rate quota certificate has been issued.
12
The Secretary may arrange for the use, under the Secretary's
13
control, of computer programs for making certain decisions under
14
this Act.
15
The rules may authorise the Secretary, on behalf of the
16
Commonwealth, to enter into arrangements under which the
17
Commonwealth may pay money for purposes connected with
18
certifying, verifying or auditing the operation of this Act or a
19
person's compliance with importing country requirements.
20
The Secretary may delegate functions or powers of the Secretary
21
under this Act (other than certain powers including the power to
22
make rules) to an SES employee, or an acting SES employee, in
23
the Department. Certain delegated powers and functions may be
24
subdelegated to an authorised officer or an APS employee in the
25
Department. The power to issue an export permit for certain kinds
26
of prescribed goods may be subdelegated to a nominated export
27
permit issuer.
28
Powers and officials
Chapter 9
Powers of the Secretary
Part 3
Introduction
Division 1
Section 284
No. , 2019
Export Control Bill 2019
305
The Minister may give directions to the Secretary in relation to the
1
performance of the Secretary's functions or the exercise of the
2
Secretary's powers in making rules. However, the Minister must
3
not give directions to the Secretary in relation to a decision on a
4
particular application made under this Act.
5
Chapter 9
Powers and officials
Part 3
Powers of the Secretary
Division 2
Powers of the Secretary
Section 285
306
Export Control Bill 2019
No. , 2019
Division 2--Powers of the Secretary
1
285 Power to require information or documents
2
(1) The Secretary may, by notice in writing given to a person, require
3
the person, within a reasonable time stated in the notice, to give the
4
Secretary any information, or produce to the Secretary any
5
documents, specified in the notice that relate to:
6
(a) any prescribed goods that have been, or are intended to be,
7
exported; or
8
(b) any permanently prohibited goods that have been exported,
9
or any goods in relation to which a temporary prohibition
10
determination applied that have been exported (whether the
11
goods were exported before or after the temporary
12
prohibition determination took effect); or
13
(c) any non-prescribed goods in relation to which:
14
(i) an application for a government certificate or a tariff
15
rate quota certificate has been made; or
16
(ii) a government certificate or a tariff rate quota certificate
17
has been issued.
18
(2) Without limiting subsection (1), the information or documents
19
specified in the notice may relate to any of the following:
20
(a) the export operations of the person or another person;
21
(b) any live animal that has been, or is intended to be, exported;
22
(c) the preparation of any goods referred to in subsection (1);
23
(d) the material or ingredients:
24
(i) of which goods referred to in subsection (1) are, or are
25
intended to be, composed; or
26
(ii) from which such goods are, or are intended to be,
27
derived;
28
(e) any animals that are intended to be, or that have been, used in
29
the preparation of goods referred to in subsection (1);
30
(f) the source of:
31
(i) any goods referred to in subsection (1); or
32
Powers and officials
Chapter 9
Powers of the Secretary
Part 3
Powers of the Secretary
Division 2
Section 285
No. , 2019
Export Control Bill 2019
307
(ii) any material or ingredients referred to in paragraph (d)
1
of this subsection; or
2
(iii) any animals referred to in paragraph (e) of this
3
subsection.
4
(3) A notice may be given under subsection (1), requiring information
5
or documents that relate to non-prescribed goods, before or after
6
the goods have been exported and whether or not the goods have
7
been accepted or rejected by the importing country.
8
(4) A person contravenes this subsection if:
9
(a) the person is required to give the Secretary information, or
10
produce to the Secretary documents, in accordance with a
11
notice given to the person under subsection (1); and
12
(b) the person fails to comply with the requirement.
13
Note 1:
The physical elements of an offence against subsection (5) are set out
14
in this subsection (see section 370).
15
Note 2:
A person may commit an offence or be liable to a civil penalty if the
16
person provides false or misleading information or documents (see
17
sections 137.1 and 137.2 of the
Criminal Code
and sections 368 and
18
369 of this Act).
19
Note 3:
This subsection is not subject to the privilege against
20
self-incrimination (see section 426).
21
Fault-based offence
22
(5) A person commits an offence if the person contravenes
23
subsection (4).
24
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
25
Civil penalty provision
26
(6) A person is liable to a civil penalty if the person contravenes
27
subsection (4).
28
Civil penalty:
240 penalty units.
29
Chapter 9
Powers and officials
Part 3
Powers of the Secretary
Division 2
Powers of the Secretary
Section 286
308
Export Control Bill 2019
No. , 2019
286 Power to arrange for certain decisions to be made by computer
1
programs
2
(1) The Secretary may arrange for the use, under the Secretary's
3
control, of computer programs for making certain decisions under
4
this Act.
5
(2) The rules may prescribe:
6
(a) the kinds of decisions under this Act that may be made by the
7
operation of a computer program under an arrangement made
8
under subsection (1); and
9
(b) the persons or bodies that may use such a computer program;
10
and
11
(c) the conditions of that use.
12
(3) The Secretary must take all reasonable steps to ensure that
13
decisions made by the operation of a computer program under an
14
arrangement made under subsection (1) are correct.
15
(4) A decision made by the operation of a computer program under an
16
arrangement made under subsection (1) is taken to be a decision
17
made by the Secretary.
18
(5) The Secretary may make a decision in substitution for a decision
19
the Secretary is taken to have made under subsection (4) if the
20
Secretary is satisfied that the decision made by the operation of the
21
computer program is incorrect.
22
287 Rules may authorise Commonwealth to enter into arrangements
23
under which money may be paid for certain purposes
24
(1) The rules may authorise the Secretary, on behalf of the
25
Commonwealth, to enter into arrangements under which the
26
Commonwealth may pay money for purposes connected with
27
certifying, verifying or auditing:
28
(a) the operation of this Act; or
29
(b) a person's compliance with importing country requirements.
30
(2) The rules may prescribe the circumstances in which the Secretary
31
may, on behalf of the Commonwealth, enter into an arrangement
32
Powers and officials
Chapter 9
Powers of the Secretary
Part 3
Powers of the Secretary
Division 2
Section 288
No. , 2019
Export Control Bill 2019
309
referred to in subsection (1) for a specified purpose referred to in
1
that subsection.
2
(3) Subsections (1) and (2) do not, by implication, limit the executive
3
power of the Commonwealth to enter into arrangements.
4
288 Delegation and subdelegation
5
Delegation by Secretary
6
(1) The Secretary may, in writing, delegate any of the Secretary's
7
functions or powers under this Act to an SES employee, or an
8
acting SES employee, in the Department. The functions or powers
9
that may be delegated under this subsection:
10
(a) include functions or powers the Secretary has as a relevant
11
chief executive, authorised applicant, infringement officer or
12
authorised person for the purposes of a provision of the
13
Regulatory Powers Act because of this Act; and
14
(b) exclude functions and powers referred to in the following
15
table:
16
17
Powers that must not be delegated
Item
Power
Provision
1
To arrange for the use of computer programs
for making certain decisions under this Act
Subsection 286(1)
2
To apply for an adverse publicity order
Subsection 364F(1)
3
To make rules
Section 432
Note 1:
The reference to this Act includes a reference to instruments made
18
under this Act (see the definition of
this Act
in section 12).
19
Note 2:
The expressions
SES employee
and
acting SES employee
are defined
20
in section 2B of the
Acts Interpretation Act 1901
.
21
Note 3:
See also sections 34AA and 34AB of the
Acts Interpretation Act 1901
.
22
Subdelegation
23
(2) If, under subsection (1), the Secretary delegates a function or
24
power to an SES employee or an acting SES employee in the
25
Chapter 9
Powers and officials
Part 3
Powers of the Secretary
Division 2
Powers of the Secretary
Section 288
310
Export Control Bill 2019
No. , 2019
Department, the employee may, in writing, subdelegate the
1
function or power to:
2
(a) an authorised officer; or
3
(b) an APS employee in the Department; or
4
(c) if the function or power is to issue export permits for a kind
5
of prescribed goods under section 225 (and without limiting
6
paragraph (a) or (b) of this subsection)--a nominated export
7
permit issuer in relation to prescribed goods of that kind.
8
Note 1:
Section 225 deals with issuing export permits.
9
Note 2:
An authorised officer may only perform a function, or exercise a
10
power, if that function or power is specified in the authorised officer's
11
instrument of authorisation (see subsection 301(1)).
12
Powers that must not be subdelegated
13
(3) However, a power under a provision of this Act referred to in the
14
following table must not be subdelegated under subsection (2):
15
16
Powers that must not be subdelegated
Item
Power
Provision
1
To approve a manner for making an
application for an exemption
Paragraph 53(3)(a)
2
To approve a form for making an
application for an exemption
Paragraph 53(3)(b)
3
To make a decision in relation to an
application to export relevant goods, if
subsection 52(3) applies to the goods
Section 54
4
To approve a manner for making an
application for a government certificate
Paragraph 65(2)(a)
5
To approve a form for making an
application for a government certificate
Paragraph 65(2)(b)
6
To make a decision in relation to an
application for a government certificate, if
section 69 applies to the application
Section 67
7
To direct a person not to carry out specified
activities or kinds of activities in relation to
a debtor under this Act until a relevant
Subsection 95(3), 103(2),
128(3), 139(2), 172(3),
180(2), 206(3) or 213(2)
Powers and officials
Chapter 9
Powers of the Secretary
Part 3
Powers of the Secretary
Division 2
Section 288
No. , 2019
Export Control Bill 2019
311
Powers that must not be subdelegated
Item
Power
Provision
Commonwealth liability has been paid
8
To direct the occupier of a registered
establishment to cease carrying out one or
more kinds of export operations in relation
to one or more kinds of prescribed goods at
the establishment
Subsection 132(1)
9
To keep a register of information about
premises that are registered under Chapter 4
Subsection 148(1)
10
To determine a place and a form for keeping
a register of information about premises that
are registered under Chapter 4
Subsection 148(2)
11
To suspend an export licence on the ground
that the holder of the licence is or was an
associate of a person referred to in
paragraph 221(1)(a), (b), (c) or (d)
Paragraph 205(1)(h)
12
To revoke an export licence on the ground
that the holder of the licence is or was an
associate of a person referred to in
paragraph 221(1)(a), (b), (c) or (d)
Paragraph 212(1)(h)
13
To refuse to grant an export licence to an
associate of a person referred to in
paragraph 221(1)(a), (b), (c) or (d)
Paragraph 221(2)(a)
14
To give directions to the holder of an export
licence
Subsection 222(1)
15
To approve a manner for making an
application for an export permit
Paragraph 239(1)(a)
16
To approve a form for making an
application for an export permit
Paragraph 239(1)(b)
17
To approve a manner for giving a notice of
intention to export
Paragraph 243(1)(a)
18
To approve a form for a notice of intention
to export
Paragraph 243(1)(b)
19
To give directions to a person or body in
relation to a matter covered by rules relating
to tariff rate quotas
Subsection 264(3)
Chapter 9
Powers and officials
Part 3
Powers of the Secretary
Division 2
Powers of the Secretary
Section 288
312
Export Control Bill 2019
No. , 2019
Powers that must not be subdelegated
Item
Power
Provision
20
To give a notice requiring a person to give
the Secretary information or produce
documents to the Secretary
Subsection 285(1)
21
If rules made for the purposes of section 287
authorise the Secretary to enter into
arrangements, on behalf of the
Commonwealth--to enter into such
arrangements
Section 287
22
To enter into an arrangement with a State or
Territory body for officers or employees of
the body to be authorised to be authorised
officers
Subsection 294(1)
23
To give a direction to an authorised officer
about the performance of the authorised
officer's functions or the exercise of the
authorised officer's powers
Subsection 301(2)
24
To approve a form for an identity card
Paragraph 306(2)(a)
25
To approve a manner for making an
application
Paragraph 377(1)(a)
26
To approve a form for making an
application
Paragraph 377(1)(b)
27
To remit or refund the whole or part of a
cost-recovery charge that is payable or that
has been paid to the Commonwealth
Subsection 405(1)
28
To direct a person not to carry out specified
activities or kinds of activities in relation to
a debtor under this Act until a cost-recovery
charge has been paid
Section 406
29
To approve a method for taking, testing or
analysing a sample
Subparagraph 410(2)(b)(iii)
30
To approve a form for a certificate to be
given by an analyst
Subsection 414(2)
31
To approve a form for a claim for
compensation
Paragraph 420(4)(a)
Powers and officials
Chapter 9
Powers of the Secretary
Part 3
Powers of the Secretary
Division 2
Section 289
No. , 2019
Export Control Bill 2019
313
Delegation and subdelegation under the rules
1
(4) The rules may provide that specified functions or powers of the
2
Secretary under the rules:
3
(a) must not be delegated; or
4
(b) must not be subdelegated.
5
Delegate or subdelegate must comply with directions
6
(5) In performing any functions or exercising any powers under a
7
delegation or subdelegation, the delegate or subdelegate must
8
comply with any directions of the Secretary or the person who
9
delegated the function or power.
10
Application of the Acts Interpretation Act 1901 to subdelegation
11
(6) Sections 34AA, 34AB and 34A of the
Acts Interpretation Act 1901
12
apply in relation to a subdelegation in a corresponding way to the
13
way in which they apply in relation to a delegation.
14
289 Minister may give directions to Secretary
15
(1) The Minister may, by legislative instrument, give directions to the
16
Secretary in relation to the performance of the Secretary's
17
functions or the exercise of the Secretary's powers in making rules
18
under section 432.
19
Note:
Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
20
Legislation
Act 2003
do not apply to directions given under this
21
subsection (see regulations made for the purposes of paragraphs
22
44(2)(b) and 54(2)(b) of that Act).
23
(2) The Minister must not give directions to the Secretary in relation to
24
a decision on a particular application made under this Act.
25
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 1
Introduction
Section 290
314
Export Control Bill 2019
No. , 2019
Part 4--Authorised officers
1
Division 1--Introduction
2
290 Simplified outline of this Part
3
The Secretary may authorise a person, or each person in a class of
4
persons, who is an officer or employee of a Commonwealth body
5
or a State or Territory body to be an authorised officer under this
6
Act.
7
The Secretary may authorise a person who is not an officer or
8
employee of a Commonwealth body or a State or Territory body to
9
be a third party authorised officer.
10
An authorisation is subject to certain conditions.
11
An authorisation may be varied, suspended or revoked. A show
12
cause notice must be given to a person who is a third party
13
authorised officer before the person's authorisation may be varied,
14
suspended or revoked (except in serious and urgent cases or if the
15
third party authorised officer has requested the variation,
16
suspension or revocation).
17
An authorised officer has the functions and powers conferred on an
18
authorised officer by this Act that are specified in the authorised
19
officer's instrument of authorisation.
20
Certain authorised officers may charge a fee in relation to things
21
done in the performance of the authorised officer's functions or the
22
exercise of the authorised officer's powers under this Act.
23
An authorised officer may give directions to certain persons to
24
provide assistance or to deal with non-compliance with the
25
requirements of this Act.
26
Powers and officials
Chapter 9
Authorised officers
Part 4
Introduction
Division 1
Section 290
No. , 2019
Export Control Bill 2019
315
An authorised officer and other persons who perform functions or
1
duties or exercise powers under this Act may be required to carry
2
an identity card when performing functions or duties or exercising
3
powers under this Act.
4
An authorised officer may commit an offence if the authorised
5
officer receives goods or services from the occupier of a registered
6
establishment and the occupier of the establishment may commit
7
an offence by providing the goods or services to the authorised
8
officer.
9
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 2
Authorisation
Section 291
316
Export Control Bill 2019
No. , 2019
Division 2--Authorisation
1
291 Authorisation of persons to be authorised officers
2
Commonwealth authorised officers and State or Territory
3
authorised officers
4
(1) The Secretary may, in writing, authorise a person, or each person
5
in a class of persons, to be an authorised officer under this Act if:
6
(a) the person, or each person in the class of persons, is an
7
officer or employee of a Commonwealth body; or
8
(b) the person, or each person in the class of persons, is an
9
officer or employee of a State or Territory body.
10
(2) The Secretary must not authorise an officer or employee of a State
11
or Territory body to be an authorised officer unless an arrangement
12
is in force under section 294 in relation to:
13
(a) the officer or employee; or
14
(b) a class of persons that includes the officer or employee.
15
Third party authorised officers
16
(3) A person who is not an officer or employee of a Commonwealth
17
body or a State or Territory body may apply to the Secretary to be
18
a third party authorised officer.
19
Requirements for applications
20
(4) An application under subsection (3) must:
21
(a) if the Secretary has approved, in writing, a manner for
22
making an application--be made in an approved manner; and
23
(b) if the Secretary has approved a form for making an
24
application:
25
(i) include the information required by the form; and
26
(ii) be accompanied by any documents required by the
27
form; and
28
(c) include the information (if any) prescribed by the rules; and
29
(d) be accompanied by any documents prescribed by the rules.
30
Powers and officials
Chapter 9
Authorised officers
Part 4
Authorisation
Division 2
Section 291
No. , 2019
Export Control Bill 2019
317
Note:
A person may commit an offence or be liable to a civil penalty if the
1
person makes a false or misleading statement in an application or
2
provides false or misleading information or documents (see
3
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
4
sections 367, 368 and 369 of this Act).
5
(5) An application is taken not to have been made if the application
6
does not comply with the requirements referred to in
7
subsection (4).
8
Secretary must decide whether to authorise person to be third
9
party authorised officer
10
(6) On receiving an application from a person made under
11
subsection (3), the Secretary must decide:
12
(a) to authorise the person to be a third party authorised officer;
13
or
14
(b) to refuse to authorise the person to be a third party authorised
15
officer.
16
Note:
A decision to refuse to authorise the person to be a third party
17
authorised officer is a reviewable decision (see Part 2 of Chapter 11)
18
and the Secretary must give the person written notice of the decision
19
(see section 382).
20
(7) The Secretary may, in writing, authorise a person to be a third
21
party authorised officer if:
22
(a) the person has made an application under subsection (3); and
23
(b) the person has given the Secretary a written notice stating:
24
(i) the interests, pecuniary or otherwise, of the person that
25
conflict or could conflict with the proper performance of
26
functions or exercise of powers by the person as an
27
authorised officer; or
28
(ii) if the person has no such interests--that fact; and
29
(c) any other requirement prescribed by the rules is, or has been,
30
met.
31
Note:
A Commonwealth authorised officer or a State or Territory authorised
32
officer may be required under other legislation to disclose interests
33
that conflict or could conflict with the proper performance of
34
functions or exercise of powers by the person as an authorised officer
35
(see, for example, the
Public Governance, Performance and
36
Accountability Act 2013
).
37
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 2
Authorisation
Section 292
318
Export Control Bill 2019
No. , 2019
Training and qualification requirements
1
(8) The Secretary must not authorise a person to be an authorised
2
officer unless the Secretary is satisfied that:
3
(a) the person satisfies the training and qualification
4
requirements determined under subsection (9); or
5
(b) the person will satisfy those training and qualification
6
requirements before the person exercises any powers, or
7
performs any functions, as an authorised officer.
8
(9) The Secretary must determine, in writing, training and qualification
9
requirements for authorised officers.
10
(10) A determination made under subsection (9) is not a legislative
11
instrument.
12
Instrument of authorisation
13
(11) The instrument of authorisation of a person as an authorised
14
officer:
15
(a) must specify:
16
(i) the functions and powers that the person may perform
17
or exercise as an authorised officer under this Act; and
18
(ii) any conditions prescribed by the rules that the Secretary
19
has decided, under paragraph 292(1)(a), are not to be
20
conditions of the authorisation; and
21
(iii) any additional conditions of the authorisation imposed
22
under paragraph 292(1)(b); and
23
(b) may specify the period during which the authorisation has
24
effect.
25
292 Conditions of authorisation
26
(1) If, under section 291, the Secretary authorises a person to be an
27
authorised officer, the authorisation is subject to:
28
(a) the conditions (if any) in relation to the authorisation
29
prescribed by the rules (other than any of those conditions
30
that the Secretary decides are not to be conditions of the
31
authorisation); and
32
Powers and officials
Chapter 9
Authorised officers
Part 4
Authorisation
Division 2
Section 293
No. , 2019
Export Control Bill 2019
319
(b) any additional conditions that the Secretary considers
1
appropriate; and
2
(c) if the person is authorised to be a third party authorised
3
officer--the condition that the officer must comply with
4
subsections (2) and (3) of this section.
5
Note 1:
A person who is third party authorised officer may commit an offence
6
or be liable to a civil penalty if the person contravenes a condition of
7
the person's authorisation (see section 293).
8
Note 2:
If a person who is a Commonwealth authorised officer or a State or
9
Territory authorised officer contravenes a condition of the person's
10
authorisation, the person may breach a code of conduct that applies to
11
the person (see, for example, the Code of Conduct under the
Public
12
Service Act 1999
).
13
Note 3:
A decision to authorise a person to be a third party authorised officer
14
subject to additional conditions is a reviewable decision (see Part 2 of
15
Chapter 11).
16
Third party authorised officer must disclose conflicts
17
(2) A third party authorised officer must give written notice to the
18
Secretary of each interest, pecuniary or otherwise, that the
19
authorised officer acquires and that conflicts or could conflict with
20
the proper performance of the authorised officer's functions or
21
exercise of the authorised officer's powers.
22
Note:
A Commonwealth authorised officer or a State or Territory authorised
23
officer may be required under other legislation to disclose interests
24
that conflict or could conflict with the proper performance of
25
functions or exercise of powers by the person as an authorised officer
26
(see, for example, the
Public Governance, Performance and
27
Accountability Act 2013
).
28
(3) A third party authorised officer who is required to give notice of an
29
interest under subsection (2) must give the notice as soon as
30
practicable after the authorised officer acquires the interest.
31
293 Third party authorised officers must not contravene conditions
32
of authorisation
33
Fault-based offence
34
(1) A person commits an offence if:
35
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 2
Authorisation
Section 294
320
Export Control Bill 2019
No. , 2019
(a) the person is a third party authorised officer; and
1
(b) the person engages in conduct; and
2
(c) the conduct contravenes a condition of the person's
3
authorisation as a third party authorised officer.
4
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
5
Civil penalty provision
6
(2) A person is liable to a civil penalty if:
7
(a) the person is a third party authorised officer; and
8
(b) the person contravenes a condition of the person's
9
authorisation as a third party authorised officer.
10
Civil penalty:
240 penalty units.
11
294 Arrangements for State or Territory officers or employees to be
12
authorised officers
13
(1) The Secretary may enter into an arrangement with a State or
14
Territory body for officers or employees of the body to be
15
authorised to be authorised officers.
16
(2) An arrangement under subsection (1) is not a legislative
17
instrument.
18
Powers and officials
Chapter 9
Authorised officers
Part 4
Variation, suspension and revocation of authorisation
Division 3
Section 295
No. , 2019
Export Control Bill 2019
321
Division 3--Variation, suspension and revocation of
1
authorisation
2
Subdivision A--Variation, suspension and revocation on
3
Secretary's own initiative
4
295 Variation of authorisation
5
(1) Subject to section 298 (which applies in relation to third party
6
authorised officers), the Secretary may, at any time, by notice in
7
writing given to a person who is an authorised officer, do any of
8
the following in relation to the person's authorisation as an
9
authorised officer:
10
(a) vary the functions that the person may perform, or the powers
11
that the person may exercise, as an authorised officer under
12
this Act;
13
(b) vary any conditions to which the person's authorisation is
14
subject under paragraph 292(1)(b) (including by imposing
15
new conditions);
16
(c) if the person's instrument of authorisation specifies a period
17
during which it has effect--vary the period during which the
18
authorisation has effect;
19
(d) if the person's instrument of authorisation does not specify a
20
period during which it has effect--vary the authorisation to
21
specify a period during which the authorisation is to have
22
effect;
23
(e) vary any other aspect of the person's authorisation.
24
Note:
A decision under this subsection in relation to a third party
authorised
25
officer is a reviewable decision (see Part 2 of Chapter 11).
26
(2) If the person was given a notice (a
show cause notice
) under
27
subsection 298(3) that included the request referred to in
28
paragraph 298(3)(b), the variation must not take effect before the
29
earlier of the following:
30
(a) the day after any response to the request is received by the
31
Secretary;
32
(b) the end of 14 days after the show cause notice was given.
33
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 3
Variation, suspension and revocation of authorisation
Section 296
322
Export Control Bill 2019
No. , 2019
(3) If the Secretary makes a variation in relation to a person's
1
authorisation as an authorised officer under subsection (1), the
2
Secretary must:
3
(a) vary the person's instrument of authorisation to include the
4
variation; and
5
(b) give the person the varied instrument of authorisation.
6
296 Suspension of authorisation
7
(1) Subject to section 298 (which applies in relation to third party
8
authorised officers), the Secretary may, at any time, by notice in
9
writing given to a person who is an authorised officer, suspend the
10
person's authorisation as an authorised officer.
11
Note:
A decision under this subsection in relation to a third party
authorised
12
officer is a reviewable decision (see Part 2 of Chapter 11).
13
Period of suspension
14
(2) A suspension must not be for more than 12 months.
15
(3) If the person was given a notice (a
show cause notice
) under
16
subsection 298(3) that included the request referred to in
17
paragraph 298(3)(b), the suspension must not start before the
18
earlier of the following:
19
(a) the day after any response to the request is received by the
20
Secretary;
21
(b) the end of 14 days after the show cause notice was given.
22
(4) The Secretary may vary the period of a suspension by written
23
notice to the person. However, the total period of the suspension
24
must not be more than 12 months.
25
Note:
A decision to extend the period of a suspension of a person's
26
authorisation as a third party authorised officer is a reviewable
27
decision (see Part 2 of Chapter 11).
28
Effect of suspension
29
(5) If a person's authorisation as an authorised officer is suspended for
30
a period under subsection (1), the person is taken not to be an
31
Powers and officials
Chapter 9
Authorised officers
Part 4
Variation, suspension and revocation of authorisation
Division 3
Section 297
No. , 2019
Export Control Bill 2019
323
authorised officer under this Act during the period of the
1
suspension.
2
Note 1:
If a person's authorisation as a third party authorised officer is
3
suspended, the Secretary may:
4
(a) request the person to notify the Secretary of certain events (see
5
section 299); or
6
(b) require an audit to be conducted in relation to the performance of
7
functions and the exercise of powers by the person as a third
8
party authorised officer (see section 267).
9
Note 2:
The person may be required to retain records (see section 408).
10
Revocation of suspension
11
(6) The Secretary may revoke a suspension of a person's authorisation
12
as an authorised officer under subsection (1) by written notice to
13
the person.
14
Note:
For the purpose of deciding whether to revoke the suspension, the
15
Secretary may request the person to notify the Secretary of certain
16
events (see section 299).
17
297 Revocation of authorisation
18
(1) Subject to section 298 (which applies in relation to third party
19
authorised officers), the Secretary may, at any time, revoke the
20
authorisation of a person as an authorised officer (including a
21
person in relation to whom a suspension is in effect under
22
section 296 or 298C) by notice in writing given to the person.
23
Note:
A decision under this subsection in relation to a third party
authorised
24
officer is a reviewable decision (see Part 2 of Chapter 11).
25
(2) If the person was given a notice (a
show cause notice
) under
26
subsection 298(3) that included the request referred to in
27
paragraph 298(3)(b), the revocation must not take effect before the
28
earlier of the following:
29
(a) the day after any response to the request is received by the
30
Secretary;
31
(b) the end of 14 days after the show cause notice was given.
32
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 3
Variation, suspension and revocation of authorisation
Section 298
324
Export Control Bill 2019
No. , 2019
298 Notice of proposed action must be given to third party
1
authorised officer
2
(1) The Secretary must not take action (the
proposed action
) under
3
subsection 295(1), 296(1) or 297(1) in relation to a person who is a
4
third party authorised officer unless the Secretary has given a
5
written notice to the person in accordance with subsection (3).
6
(2) Subsection (1) does not apply if the Secretary reasonably believes
7
that the need for the proposed action is serious and urgent.
8
(3) A notice under subsection (1) must:
9
(a) state that the Secretary is considering taking the proposed
10
action and the reasons for the proposed action; and
11
(b) request the person to give the Secretary, within 14 days after
12
the day the notice is given to the person, a written statement
13
showing cause why the proposed action should not be taken;
14
and
15
(c) include a statement setting out the person's right to seek
16
review of a decision to take the proposed action.
17
Subdivision B--Variation, suspension and revocation on
18
application or request by third party authorised
19
officer
20
298A Application for variation of authorisation
21
(1) A person who is a third party authorised officer may apply to the
22
Secretary to:
23
(a) vary the functions that the person may perform, or the powers
24
that the person may exercise, as a third party authorised
25
officer under this Act; or
26
(b) vary any conditions to which the person's authorisation is
27
subject under paragraph 292(1)(b) (including by imposing
28
new conditions); or
29
(c) vary any other aspect of the person's authorisation.
30
Powers and officials
Chapter 9
Authorised officers
Part 4
Variation, suspension and revocation of authorisation
Division 3
Section 298A
No. , 2019
Export Control Bill 2019
325
Requirements for applications
1
(2) An application under subsection (1) must:
2
(a) if the Secretary has approved, in writing, a manner for
3
making an application--be made in an approved manner; and
4
(b) if the Secretary has approved a form for making an
5
application:
6
(i) include the information required by the form; and
7
(ii) be accompanied by any documents required by the
8
form; and
9
(c) include the information (if any) prescribed by the rules; and
10
(d) be accompanied by any documents prescribed by the rules.
11
Note:
A person may commit an offence or be liable to a civil penalty if the
12
person makes a false or misleading statement in an application or
13
provides false or misleading information or documents (see
14
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
15
sections 367, 368 and 369 of this Act).
16
(3) An application is taken not to have been made if the application
17
does not comply with the requirements referred to in
18
subsection (2).
19
Secretary must decide whether to make variation
20
(4) If the Secretary receives an application made under subsection (1)
21
to make a variation, the Secretary must decide:
22
(a) to make the variation; or
23
(b) to refuse to make the variation.
24
Note:
A decision to refuse to make the variation is a reviewable decision
25
(see Part 2 of Chapter 11) and the Secretary must give the applicant
26
written notice of the decision (see section 382).
27
(5) The Secretary may make the variation if the Secretary is satisfied,
28
having regard to any matter that the Secretary considers relevant,
29
that it is appropriate to make the variation.
30
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 3
Variation, suspension and revocation of authorisation
Section 298B
326
Export Control Bill 2019
No. , 2019
Notice of decision
1
(6) If the Secretary makes a variation under paragraph (4)(a) in
2
relation to the person's authorisation as a third party authorised
3
officer, the Secretary must:
4
(a) vary the person's instrument of authorisation to include the
5
variation; and
6
(b) give the person the varied instrument of authorisation.
7
298B Additional or corrected information
8
(1) A person who has made an application under subsection 298A(1)
9
must comply with subsection (2) of this section if:
10
(a) the person becomes aware that information included in the
11
application, or information or a document given to the
12
Secretary in relation to the application, was incomplete or
13
incorrect; or
14
(b) a change prescribed by the rules occurs.
15
(2) The person must, as soon as practicable, give the Secretary
16
additional or corrected information, to the extent that it is relevant
17
to the Secretary's consideration of the application.
18
Note 1:
A person may commit an offence or be liable to a civil penalty if the
19
person makes a false or misleading statement in an application or
20
provides false or misleading information or documents (see
21
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
22
sections 367, 368 and 369 of this Act).
23
Note 2:
This section is not subject to the privilege against self-incrimination
24
(see section 426).
25
Civil penalty provision
26
(3) A person is liable to a civil penalty if:
27
(a) the person is required to give information to the Secretary
28
under subsection (2); and
29
(b) the person fails to comply with the requirement.
30
Civil penalty:
60 penalty units.
31
Powers and officials
Chapter 9
Authorised officers
Part 4
Variation, suspension and revocation of authorisation
Division 3
Section 298C
No. , 2019
Export Control Bill 2019
327
298C Request for suspension of authorisation
1
(1) A person who is a third party authorised officer may request the
2
Secretary, in writing, to suspend the person's authorisation as a
3
third party authorised officer.
4
(2) If the Secretary receives a request from a person under
5
subsection (1), the Secretary must, by written notice to the person,
6
suspend the person's authorisation as a third party authorised
7
officer as requested, with effect on the day specified in the notice.
8
Effect of suspension
9
(3) If a person's authorisation as a third party authorised officer is
10
suspended for a period under subsection (2), the person is taken not
11
to be a third party authorised officer under this Act during the
12
period of the suspension.
13
Note 1:
If a person's authorisation as a third party authorised officer is
14
suspended, the Secretary may:
15
(a) request the person to notify the Secretary of certain events (see
16
section 299); or
17
(b) require an audit to be conducted in relation to the performance of
18
functions and the exercise of powers by the person as a third
19
party authorised officer (see section 267).
20
Note 2:
The person may be required to retain records (see section 408).
21
Request to revoke suspension
22
(4) If a person's authorisation as a third party authorised officer is
23
suspended under subsection (2), the person may request the
24
Secretary, in writing, to revoke the suspension.
25
(5) If the Secretary receives a request from a person under
26
subsection (4), the Secretary may:
27
(a) if the Secretary is satisfied there is no reason why the
28
suspension should not be revoked--revoke the suspension by
29
written notice to the person; or
30
(b) in any other case:
31
(i) suspend the person's authorisation as a third party
32
authorised officer under subsection 296(1); or
33
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 3
Variation, suspension and revocation of authorisation
Section 298D
328
Export Control Bill 2019
No. , 2019
(ii) revoke the person's authorisation as a third party
1
authorised officer under subsection 297(1).
2
Note 1:
For the purpose of deciding whether to revoke the suspension, the
3
Secretary may request the person to notify the Secretary of certain
4
events (see section 299).
5
Note 2:
A decision to suspend or revoke a person's authorisation as a third
6
party authorised officer under subsection 296(1) or 297(1) is a
7
reviewable decision (see Part 2 of Chapter 11).
8
298D Request for revocation of authorisation
9
(1) A person who is a third party authorised officer (including a person
10
in relation to whom a suspension is in effect under section 296 or
11
298C) may request the Secretary, in writing, to revoke the person's
12
authorisation as a third party authorised officer.
13
(2) If the Secretary receives a request from a person under
14
subsection (1), the Secretary must, by written notice to the person,
15
revoke the person's authorisation as a third party authorised officer
16
with effect on the day specified in the notice.
17
Subdivision C--Other provisions
18
299 Secretary may request notification of certain events by
19
suspended third party authorised officer
20
(1) This section applies in relation to a person whose authorisation as a
21
third party authorised officer is suspended for a period under
22
section 296 or 298C.
23
(2) For the purpose of deciding whether to revoke the suspension, the
24
Secretary may, in writing, request the person to notify the
25
Secretary, in writing, within 14 days after the request is made:
26
(a) of any notifiable event in relation to the person that has
27
occurred since the person's authorisation was suspended; or
28
(b) if no notifiable event in relation to the person has occurred
29
since the person's authorisation was suspended--of that fact.
30
Note:
A person may commit an offence or be liable to a civil penalty if the
31
person provides false or misleading information or documents (see
32
Powers and officials
Chapter 9
Authorised officers
Part 4
Variation, suspension and revocation of authorisation
Division 3
Section 299
No. , 2019
Export Control Bill 2019
329
sections 137.1 and 137.2 of the
Criminal Code
and sections 368 and
1
369 of this Act).
2
(3) Each of the following is a notifiable event in relation to a person
3
for the purposes of subsection (2):
4
(a) the person has been convicted of an offence against, or
5
ordered to pay a pecuniary penalty under, an Australian law
6
for a contravention involving fraud or dishonesty;
7
(b) the person acquired an interest, pecuniary or otherwise, that
8
conflicts or could conflict with the proper performance of
9
functions or exercise of powers by the person as an
10
authorised officer;
11
(c) a pecuniary penalty imposed on the person for a
12
contravention of a provision of this Act or the
Biosecurity Act
13
2015
became due and payable;
14
(d) a liability of the person for an amount under a
15
Commonwealth law prescribed by the rules became due and
16
payable.
17
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 4
Functions and powers
Section 300
330
Export Control Bill 2019
No. , 2019
Division 4--Functions and powers
1
300 Rules may confer functions or powers on authorised officers
2
The rules may confer functions or powers on authorised officers, or
3
a class of authorised officers, that are necessary or convenient to be
4
performed or exercised for the purposes of achieving the objects of
5
this Act.
6
Example: The rules may confer on a specified class of authorised officers the
7
power to pass a specified kind of prescribed goods as fit for human
8
consumption.
9
301 Functions and powers of authorised officers
10
(1) An authorised officer has the functions and powers conferred on an
11
authorised officer by this Act that are specified in the authorised
12
officer's instrument of authorisation.
13
Note 1:
The reference to this Act includes a reference to instruments made
14
under this Act (see the definition of
this Act
in section 12). See also
15
section 300 which provides for the rules to confer functions or powers
16
on an authorised officer.
17
Note 2:
An authorised officer may only perform a function, or exercise a
18
power, if that function or power is specified in the authorised officer's
19
instrument of authorisation.
20
Secretary may give directions to authorised officer
21
(2) The Secretary may give a direction to an authorised officer about
22
the performance of the authorised officer's functions or the
23
exercise of the authorised officer's powers.
24
Note:
See also section 309 (general provisions relating to directions).
25
Commonwealth authorised officer may give directions to third
26
party authorised officers
27
(3) A Commonwealth authorised officer may give a direction to a third
28
party authorised officer, or a class of third party authorised
29
officers, about the performance of functions or the exercise of
30
powers by the third party authorised officer or a third party
31
Powers and officials
Chapter 9
Authorised officers
Part 4
Functions and powers
Division 4
Section 302
No. , 2019
Export Control Bill 2019
331
authorised officer included in the class of third party authorised
1
officers.
2
Note:
See also section 309 (general provisions relating to directions).
3
Authorised officer must comply with directions
4
(4) In performing functions or exercising powers under this Act, an
5
authorised officer must comply with any directions given to the
6
authorised officer under subsection (2) or (3).
7
302 Third party authorised officer must not contravene direction
8
Fault-based offence
9
(1) A third party authorised officer commits an offence if:
10
(a) the authorised officer is given a direction under
11
subsection 301(2) or (3); and
12
(b) the authorised officer engages in conduct; and
13
(c) the conduct contravenes the direction.
14
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
15
Civil penalty provision
16
(2) A third party authorised officer is liable to a civil penalty if the
17
authorised officer contravenes subsection 301(4).
18
Civil penalty:
240 penalty units.
19
303 Certain authorised officers may charge fees
20
(1) A State or Territory authorised officer, or a third party authorised
21
officer, may charge a fee under this section in relation to things
22
done in the performance of the authorised officer's functions, or
23
the exercise of the authorised officer's powers, under this Act.
24
Note:
Fees may also be charged in relation to the performance of functions,
25
or the exercise of powers, by or on behalf of a Commonwealth
26
authorised officer (see section 399).
27
(2) A fee must not be such as to amount to taxation.
28
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 4
Functions and powers
Section 304
332
Export Control Bill 2019
No. , 2019
304 Direction to assist persons performing functions etc. under this
1
Act
2
(1) If:
3
(a) an authorised officer is performing functions or exercising
4
powers under this Act; and
5
(b) the authorised officer reasonably believes that a person (the
6
relevant person
) is able to provide reasonable assistance or
7
facilities to the authorised officer, or to any other person who
8
is performing functions or exercising powers under this Act;
9
the authorised officer may direct the relevant person to provide that
10
assistance or those facilities.
11
Note:
See also section 309 (general provisions relating to directions).
12
Fault-based offence
13
(2) A person commits an offence if:
14
(a) the person is given a direction under subsection (1); and
15
(b) the person engages in conduct; and
16
(c) the conduct contravenes the direction.
17
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
18
Civil penalty provision
19
(3) A person is liable to a civil penalty if the person contravenes a
20
direction given under subsection (1).
21
Civil penalty:
60 penalty units.
22
305 Direction to deal with non-compliance with the requirements of
23
this Act etc.
24
Grounds for giving direction
25
(1) An authorised officer may give a direction to a person (a
relevant
26
person
) referred to in column 1 of an item in the following table if
27
an authorised officer reasonably believes that a ground referred to
28
in column 2 of that item exists.
29
Powers and officials
Chapter 9
Authorised officers
Part 4
Functions and powers
Division 4
Section 305
No. , 2019
Export Control Bill 2019
333
1
Directions to deal with non-compliance with the requirements of this Act etc.
Item
Column 1
Relevant person
Column 2
Grounds for giving direction
1
The manager of an
accredited property
Any of the following:
(a) a condition of the accreditation of the property
has been contravened, or it is likely that such a
condition will be contravened;
(b) the manager has not complied, or is likely not
to comply, with a requirement of this Act;
(c) the integrity of particular prescribed goods, or
a kind of prescribed goods, covered by the
accreditation cannot be ensured, or it is likely
that the integrity of particular prescribed
goods, or a kind of prescribed goods, covered
by the accreditation will not be able to be
ensured;
(d) particular prescribed goods, or a kind of
prescribed goods, covered by the
accreditation:
(i) do not comply, or are not likely to
comply, with a requirement of this Act
that applies in relation to the goods; or
(ii) do not meet, or are not likely to meet,
an importing country requirement
relating to the goods
2
The occupier of a
registered
establishment
Any of the following:
(a) a condition of the registration of the
establishment has been contravened, or it is
likely that such a condition will be
contravened;
(b) the occupier has not complied, or is likely not
to comply, with a requirement of this Act;
(c) the integrity of particular prescribed goods, or
a kind of prescribed goods, covered by the
registration cannot be ensured, or it is likely
that the integrity of particular prescribed
goods, or a kind of prescribed goods, covered
by the registration will not be able to be
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 4
Functions and powers
Section 305
334
Export Control Bill 2019
No. , 2019
Directions to deal with non-compliance with the requirements of this Act etc.
Item
Column 1
Relevant person
Column 2
Grounds for giving direction
ensured;
(d) particular prescribed goods, or a kind of
prescribed goods, covered by the registration:
(i) do not comply, or are not likely to
comply, with a requirement of this Act
that applies in relation to the goods; or
(ii) do not meet, or are not likely to meet,
an importing country requirement
relating to the goods
3
The holder of an
approved arrangement
Any of the following:
(a) a condition of the approved arrangement has
been contravened, or it is likely that such a
condition will be contravened;
(b) the holder has not complied, or is likely not to
comply, with a requirement of this Act;
(c) the integrity of particular prescribed goods, or
a kind of prescribed goods, covered by the
approved arrangement cannot be ensured, or it
is likely that the integrity of particular
prescribed goods, or a kind of prescribed
goods, covered by the approved arrangement
will not be able to be ensured;
(d) particular prescribed goods, or a kind of
prescribed goods, covered by the approved
arrangement:
(i) do not comply, or are not likely to
comply, with a requirement of this Act
that applies in relation to the goods; or
(ii) do not meet, or are not likely to meet,
an importing country requirement
relating to the goods
4
The holder of an export
licence
Any of the following:
(a) a condition of the export licence has been
contravened, or it is likely that such a
condition will be contravened;
(b) the holder has not complied, or is likely not to
Powers and officials
Chapter 9
Authorised officers
Part 4
Functions and powers
Division 4
Section 305
No. , 2019
Export Control Bill 2019
335
Directions to deal with non-compliance with the requirements of this Act etc.
Item
Column 1
Relevant person
Column 2
Grounds for giving direction
comply, with a requirement of this Act;
(c) the integrity of particular prescribed goods, or
a kind of prescribed goods, covered by the
export licence cannot be ensured, or it is likely
that the integrity of particular prescribed
goods, or a kind of prescribed goods, covered
by the licence will not be able to be ensured;
(d) particular prescribed goods, or a kind of
prescribed goods, covered by the licence:
(i) do not comply, or are not likely to
comply, with a requirement of this Act
that applies in relation to the goods; or
(ii) do not meet, or are not likely to meet,
an importing country requirement
relating to the goods
5
The applicant for an
export permit for a
kind of prescribed
goods
Some or all of the goods:
(a) do not comply, or are not likely to comply,
with a requirement of this Act that applies in
relation to the goods; or
(b) do not meet, or are not likely to meet, an
importing country requirement relating to the
goods
6
The holder of an export
permit for a kind of
prescribed goods
Some or all of the goods:
(a) do not comply, or are not likely to comply,
with a requirement of this Act that applies in
relation to the goods; or
(b) do not meet, or are not likely to meet, an
importing country requirement relating to the
goods
7
The person who gave a
notice of intention to
export a consignment
of a kind of prescribed
goods
Some or all of the goods in the consignment:
(a) do not comply, or are not likely to comply,
with a requirement of this Act that applies in
relation to the goods; or
(b) do not meet, or are not likely to meet, an
importing country requirement relating to the
goods
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 4
Functions and powers
Section 305
336
Export Control Bill 2019
No. , 2019
Directions to deal with non-compliance with the requirements of this Act etc.
Item
Column 1
Relevant person
Column 2
Grounds for giving direction
8
A person of a kind
prescribed by the rules
(who may be a relevant
person referred to in
another item of this
table)
A ground prescribed by the rules
Content of direction
1
(2) A direction under subsection (1) must require the relevant person
2
to take specified action (which may include to cease carrying out
3
export operations in relation to particular prescribed goods or a
4
kind of prescribed goods), within a specified period, to deal with
5
the ground for giving the direction.
6
Note 1:
An authorised officer may give more than one direction relating to a
7
ground (see subsection 33(1) of the
Acts Interpretation Act 1901
).
8
Note 2:
See also section 309 (general provisions relating to directions).
9
(3) However, a direction under subsection (1) must not require the
10
relevant person to cease carrying out export operations in relation
11
to particular prescribed goods, or a kind of prescribed goods,
12
unless an authorised officer reasonably believes that:
13
(a) one or more of the following grounds exists:
14
(i) the goods do not comply, or it is likely that the goods do
15
not comply, with a requirement of this Act that applies
16
in relation to the goods;
17
(ii) the goods do not meet, or it is likely that the goods do
18
not meet, an importing country requirement relating to
19
the goods;
20
(iii) the integrity of the goods cannot be ensured;
21
(iv) a ground prescribed by the rules; and
22
(b) that ground, or those grounds, cannot be dealt with other than
23
by ceasing the relevant export operations.
24
Powers and officials
Chapter 9
Authorised officers
Part 4
Functions and powers
Division 4
Section 305
No. , 2019
Export Control Bill 2019
337
(4) A direction under subsection (1) that is given in writing must state
1
that the relevant person may be liable to a civil penalty if the
2
person fails to comply with the direction.
3
Civil penalty provision
4
(5) A person who is given a direction under subsection (1) must
5
comply with the direction.
6
Civil penalty:
60 penalty units.
7
(6) Subsection (5) does not apply if:
8
(a) the direction was given in writing and the direction did not
9
include the statement referred to in subsection (4); or
10
(b) the direction was given orally and the authorised officer did
11
not take reasonable steps to inform the person that the person
12
may be liable to a civil penalty for failing to comply with the
13
direction.
14
Note:
A defendant bears an evidential burden in relation to the matter in this
15
subsection (see section 96 of the Regulatory Powers Act).
16
(7) For the purposes of paragraph (6)(b), it is sufficient if the following
17
form of words is used: "You may be liable to a civil penalty if you
18
fail to comply with this direction".
19
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 5
Miscellaneous
Section 306
338
Export Control Bill 2019
No. , 2019
Division 5--Miscellaneous
1
306 Identity cards
2
(1) The Secretary may issue an identity card to any of the following:
3
(a) an authorised officer;
4
(b) an approved auditor;
5
(c) any other person who performs functions or duties or
6
exercises powers under this Act and is prescribed by the
7
rules.
8
(2) An identity card issued to a person under subsection (1) must:
9
(a) be in the form approved by the Secretary; and
10
(b) contain a recent photograph of the person.
11
(3) Subject to subsection (5), if the Secretary issues an identity card to
12
an authorised officer under subsection (1), the authorised officer
13
must carry the identity card at all times when performing functions
14
or duties or exercising powers as an authorised officer.
15
(4) Subject to subsection (5), if the Secretary issues an identity card to
16
an approved auditor under subsection (1), the approved auditor
17
must carry the identity card at all times when conducting an audit
18
under Part 1 of Chapter 9.
19
(5) An authorised officer or approved auditor need not carry the
20
identity card in the circumstances prescribed by the rules.
21
307 Offence--failure to return identity card
22
(1) A person contravenes this subsection if:
23
(a) the person has been issued with an identity card under
24
subsection 306(1); and
25
(b) the person ceases to be a person referred to in
26
paragraph 306(1)(a), (b) or (c); and
27
(c) the person does not, within 14 days after so ceasing, return
28
the person's identity card to the Secretary.
29
(2) Subsection (1) of this section does not apply:
30
Powers and officials
Chapter 9
Authorised officers
Part 4
Miscellaneous
Division 5
Section 308
No. , 2019
Export Control Bill 2019
339
(a) to an authorised officer whose authorisation has been
1
suspended; or
2
(b) if the identity card was lost or destroyed.
3
Note:
A defendant bears an evidential burden in relation to the matter in this
4
subsection (see subsection 13.3(3) of the
Criminal Code
).
5
Strict liability offence
6
(3) A person commits an offence of strict liability if the person
7
contravenes subsection (1).
8
Penalty: 1 penalty unit.
9
308 Certain goods or services must not be provided to, or received
10
by, authorised officers
11
Occupier of registered establishment must not provide goods or
12
services to authorised officer
13
(1) The occupier of a registered establishment must not provide goods
14
or services to an authorised officer.
15
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
16
(2) Subsection (1) does not apply if the Secretary has approved, in
17
writing, the provision of the goods and services to the authorised
18
officer.
19
Note:
A defendant bears an evidential burden in relation to the matter in this
20
subsection (see subsection 13.3(3) of the
Criminal Code
).
21
(3) Subsection (1) does not apply in relation to goods or services that
22
are provided to a third party authorised officer under a contract of
23
employment or a contract for services.
24
Note:
A defendant bears an evidential burden in relation to the matter in this
25
subsection (see subsection 13.3(3) of the
Criminal Code
).
26
Authorised officer must not receive goods or services from
27
occupier of registered establishment
28
(4) An authorised officer must not receive goods or services from the
29
occupier of a registered establishment.
30
Chapter 9
Powers and officials
Part 4
Authorised officers
Division 5
Miscellaneous
Section 309
340
Export Control Bill 2019
No. , 2019
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
1
(5) Subsection (4) does not apply if the Secretary has approved, in
2
writing, the provision of the goods and services to the authorised
3
officer.
4
Note:
A defendant bears an evidential burden in relation to the matter in this
5
subsection (see subsection 13.3(3) of the
Criminal Code
).
6
(6) Subsection (4) does not apply in relation to goods or services that
7
are provided to a third party authorised officer under a contract of
8
employment or a contract for services.
9
Note:
A defendant bears an evidential burden in relation to the matter in this
10
subsection (see subsection 13.3(3) of the
Criminal Code
).
11
Definition of
goods
12
(7) For the purposes of this section:
13
goods
includes any article, substance or commodity.
14
309 General provisions relating to directions
15
(1) Unless otherwise provided by this Act, a person who is permitted
16
to give a direction under this Act may give the direction orally or
17
in writing (including by electronic means).
18
Written copy of oral direction must be given
19
(2) If a person gives a direction under this Act orally, the person must,
20
as soon as practicable after giving the direction, also give the
21
direction in writing (including by electronic means).
22
(3) A failure to comply with subsection (2) does not affect the validity
23
of the direction.
24
Note:
If an authorised officer fails to comply with subsection (2), the
25
Secretary may suspend or revoke the authorisation of the authorised
26
officer under Division 3.
27
Directions are not legislative instruments
28
(4) Unless otherwise provided by this Act, a direction that is given
29
under this Act in writing is not a legislative instrument.
30
Powers and officials
Chapter 9
Authorised officers
Part 4
Miscellaneous
Division 5
Section 309
No. , 2019
Export Control Bill 2019
341
Inconsistent directions
1
(5) Subject to subsection (6), a later direction overrides an earlier
2
direction to the extent of any inconsistency.
3
(6) If:
4
(a) a direction (
direction A
) is given by a State or Territory
5
authorised officer or a third party authorised officer; and
6
(b) the direction is inconsistent with a direction (
direction B
)
7
given by a Commonwealth authorised officer;
8
then direction B prevails and direction A, to the extent of the
9
inconsistency, does not have any effect.
10
Chapter 9
Powers and officials
Part 5
Accredited veterinarians and approved export programs
Division 1
Introduction
Section 310
342
Export Control Bill 2019
No. , 2019
Part 5--Accredited veterinarians and approved
1
export programs
2
Division 1--Introduction
3
310 Simplified outline of this Part
4
The Secretary may approve programs of export operations to be
5
carried out by an accredited veterinarian or an authorised officer
6
for the purpose of ensuring:
7
(a)
the health and welfare of eligible live animals; or
8
(b)
the health and condition of eligible animal reproductive
9
material.
10
The rules may make provision for and in relation to the following:
11
(a)
matters relating to the approval of programs of export
12
operations;
13
(b)
implementation, variation, suspension and revocation of
14
approved export programs;
15
(c)
dealing with inconsistencies between approved export
16
programs that relate to the same export operations;
17
(d)
accreditation of veterinarians for the purposes of
18
carrying out export operations in approved export
19
programs.
20
The Secretary may direct an authorised officer to carry out some or
21
all of the export operations in an approved export program or to
22
monitor or review the carrying out of export operations in
23
approved export programs.
24
A person may commit an offence for failing to comply with certain
25
requirements relating to approved export programs.
26
A person may commit an offence or be liable to a civil penalty if
27
the person obstructs or hinders an accredited veterinarian, or an
28
Powers and officials
Chapter 9
Accredited veterinarians and approved export programs
Part 5
Introduction
Division 1
Section 310
No. , 2019
Export Control Bill 2019
343
authorised officer, in carrying out export operations in an approved
1
export program.
2
Chapter 9
Powers and officials
Part 5
Accredited veterinarians and approved export programs
Division 2
Approved export programs
Section 311
344
Export Control Bill 2019
No. , 2019
Division 2--Approved export programs
1
311 Approved export programs
2
(1) The Secretary may, in writing, approve programs of export
3
operations to be carried out by an accredited veterinarian or an
4
authorised officer for the purpose of ensuring:
5
(a) the health and welfare of eligible live animals; or
6
(b) the health and condition of eligible animal reproductive
7
material.
8
(2) For the purposes of subsection (1), the export operations to be
9
carried out in a program of export operations:
10
(a) may include (but are not limited to) any of the following:
11
(i) monitoring the health and welfare of eligible live
12
animals or the health and condition of eligible animal
13
reproductive material;
14
(ii) examining, testing or treating eligible live animals or
15
eligible animal reproductive material;
16
(iii) keeping records of the implementation of the program;
17
(iv) making declarations attesting to the completion of the
18
requirements of the program;
19
(v) otherwise reporting on the implementation of the
20
program;
21
(vi) any other matter prescribed by the rules; and
22
(b) may differ depending on any of the following:
23
(i) the country to which the eligible live animals or eligible
24
animal reproductive material is to be exported;
25
(ii) the kind of eligible live animals or eligible animal
26
reproductive material involved;
27
(iii) the method by which the eligible live animals or eligible
28
animal reproductive material is to be transported;
29
(iv) any other relevant matter.
30
(3) The Secretary may, under subsection (1):
31
(a) approve a program of export operations:
32
Powers and officials
Chapter 9
Accredited veterinarians and approved export programs
Part 5
Approved export programs
Division 2
Section 312
No. , 2019
Export Control Bill 2019
345
(i) on application by a person who wishes to export eligible
1
live animals or eligible animal reproductive material; or
2
(ii) on the Secretary's own initiative; and
3
(b) approve more than one program of export operations to be
4
carried out in relation to eligible live animals or eligible
5
animal reproductive material to be exported by a person.
6
(4) The rules may make provision for and in relation to the following:
7
(a) matters relating to the approval of programs of export
8
operations referred to in subsection (1);
9
(b) the implementation, variation, suspension and revocation of
10
approved export programs;
11
(c) dealing with inconsistencies between approved export
12
programs that relate to the same export operations.
13
(5) The rules may also provide for:
14
(a) the giving of directions to a person who wishes to export
15
eligible live animals or eligible animal reproductive material
16
in relation to the implementation of an approved export
17
program; and
18
(b) the publishing by the Secretary of records and reports made
19
by accredited veterinarians and authorised officers in relation
20
to approved export programs.
21
312 Accreditation of veterinarians
22
(1) The rules may make provision for and in relation to the
23
accreditation of veterinarians for the purposes of carrying out
24
export operations in approved export programs.
25
(2) Without limiting subsection (1), the rules may make provision for
26
and in relation to any of the following:
27
(a) requirements that must be met for accreditation;
28
(b) applications for accreditation;
29
(c) the period of an accreditation;
30
(d) conditions of an accreditation;
31
(e) variation, suspension and revocation of an accreditation;
32
(f) records and reporting by an accredited veterinarian.
33
Chapter 9
Powers and officials
Part 5
Accredited veterinarians and approved export programs
Division 2
Approved export programs
Section 313
346
Export Control Bill 2019
No. , 2019
313 Secretary may direct authorised officers to carry out certain
1
export operations in approved export program
2
(1) The Secretary may direct an authorised officer to carry out some or
3
all of the export operations in an approved export program,
4
whether or not an authorised officer is required in accordance with
5
the program itself to carry out those export operations.
6
Note:
See also section 309 (general provisions relating to directions).
7
(2) If the Secretary gives a direction under subsection (1) in relation to
8
some or all of the export operations in an approved export
9
program, the Secretary must, in writing, notify the person whose
10
export operations are affected by the direction.
11
314 Secretary may direct authorised officer to monitor or review
12
export operations in approved export programs
13
(1) The Secretary may direct an authorised officer to monitor or
14
review:
15
(a) the carrying out by accredited veterinarians of export
16
operations in approved export programs; or
17
(b) export operations in approved export programs carried out by
18
persons who export eligible live animals or eligible animal
19
reproductive material.
20
Note 1:
The Secretary may also require an audit to be conducted in relation to
21
the performance of functions and the exercise of powers under this
22
Act by an accredited veterinarian (see section 267).
23
Note 2:
See also section 309 (general provisions relating to directions).
24
(2) If:
25
(a) the Secretary gives a direction to an authorised officer under
26
subsection (1); and
27
(b) the authorised officer identifies a deficiency in the carrying
28
out of export operations in an approved export program by an
29
accredited veterinarian;
30
the authorised officer may, in writing, direct the accredited
31
veterinarian to remedy the deficiency within such reasonable
32
period as is specified in the direction.
33
Powers and officials
Chapter 9
Accredited veterinarians and approved export programs
Part 5
Approved export programs
Division 2
Section 314
No. , 2019
Export Control Bill 2019
347
Note:
The accredited veterinarian may commit an offence if the veterinarian
1
fails to comply with the direction (see section 317).
2
(3) A direction to an accredited veterinarian under subsection (2) must:
3
(a) describe the deficiency; and
4
(b) state that the accredited veterinarian may commit an offence
5
if the accredited veterinarian fails to remedy the deficiency
6
within the period specified in the direction.
7
Chapter 9
Powers and officials
Part 5
Accredited veterinarians and approved export programs
Division 3
Offences and civil penalty provisions
Section 315
348
Export Control Bill 2019
No. , 2019
Division 3--Offences and civil penalty provisions
1
315 Offence--person other than accredited veterinarian or
2
authorised officer carrying out export operations in
3
approved export program
4
(1) A veterinarian commits an offence if:
5
(a) the veterinarian carries out export operations in an approved
6
export program; and
7
(b) the veterinarian is reckless as to whether the export
8
operations are in such a program; and
9
(c) the veterinarian is not:
10
(i) an accredited veterinarian; or
11
(ii) an authorised officer who has been directed under
12
subsection 313(1) to carry out the export operations.
13
Penalty: 50 penalty units.
14
(2) Strict liability applies to paragraphs (1)(a) and (c).
15
316 Strict liability offence--failure to keep records or provide
16
reports in relation to approved export program
17
An accredited veterinarian commits an offence of strict liability if:
18
(a) the accredited veterinarian is required by the rules to keep
19
records, or provide reports, in connection with an approved
20
export program; and
21
(b) the accredited veterinarian contravenes the requirement.
22
Penalty: 50 penalty units.
23
317 Strict liability offence--failure to remedy deficiency in carrying
24
out approved export program
25
An accredited veterinarian commits an offence of strict liability if:
26
(a) the veterinarian is given a direction under subsection 314(2);
27
and
28
(b) the veterinarian fails to comply with the direction.
29
Powers and officials
Chapter 9
Accredited veterinarians and approved export programs
Part 5
Offences and civil penalty provisions
Division 3
Section 318
No. , 2019
Export Control Bill 2019
349
Penalty: 50 penalty units.
1
318 Offence--failure to ensure accredited veterinarian is engaged to
2
carry out relevant export operations in approved export
3
program
4
A person commits an offence if:
5
(a) the person carries out export operations; and
6
(b) the person is reckless as to whether the export operations are
7
in an approved export program; and
8
(c) the person does not ensure that, at all times when the
9
approved export program applies, an accredited veterinarian
10
is engaged to carry out the export operations in the program,
11
other than export operations that an authorised officer is
12
required to carry out in accordance with:
13
(i) the program; or
14
(ii) a direction under subsection 313(1).
15
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
16
319 Strict liability offence--contravening requirement to allow
17
accredited veterinarian etc. to accompany eligible live
18
animals during transport to overseas destination
19
A person commits an offence of strict liability if:
20
(a) under the rules, the person is required to allow an accredited
21
veterinarian or an authorised officer to accompany eligible
22
live animals during their transport from Australia to their
23
overseas destination in connection with an approved export
24
program; and
25
(b) the person contravenes the requirement.
26
Penalty: 50 penalty units.
27
Chapter 9
Powers and officials
Part 5
Accredited veterinarians and approved export programs
Division 3
Offences and civil penalty provisions
Section 320
350
Export Control Bill 2019
No. , 2019
320 Person must not obstruct or hinder accredited veterinarians etc.
1
carrying out export operations in approved export
2
program
3
(1) A person contravenes this subsection if the person obstructs or
4
hinders an accredited veterinarian, or an authorised officer, in
5
carrying out export operations in an approved export program.
6
Note:
The physical elements of an offence against subsection (2) are set out
7
in this subsection (see section 370).
8
Fault-based offence
9
(2) A person commits an offence if the person contravenes
10
subsection (1).
11
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
12
Strict liability offence
13
(3) A person commits an offence of strict liability if the person
14
contravenes subsection (1).
15
Penalty: 50 penalty units.
16
Civil penalty provision
17
(4) A person is liable to a civil penalty if the person contravenes
18
subsection (1).
19
Civil penalty:
960 penalty units.
20
321 Strict liability offence--contravening requirement to provide
21
reasonable facilities and assistance to accredited
22
veterinarian etc.
23
(1) If:
24
(a) an accredited veterinarian is engaged to carry out some or all
25
of the export operations in an approved export program; or
26
(b) under subsection 313(1), the Secretary directs an authorised
27
officer to carry out some or all of those export operations;
28
Powers and officials
Chapter 9
Accredited veterinarians and approved export programs
Part 5
Offences and civil penalty provisions
Division 3
Section 321
No. , 2019
Export Control Bill 2019
351
the person who wishes to export the eligible live animals or
1
eligible animal reproductive material to which the program relates
2
must provide the accredited veterinarian or authorised officer with
3
all reasonable facilities and assistance necessary to carry out the
4
export operations.
5
(2) A person commits an offence of strict liability if:
6
(a) the person is required to provide facilities and assistance
7
under subsection (1); and
8
(b) the person fails to comply with the requirement.
9
Penalty: 50 penalty units.
10
Chapter 9
Powers and officials
Part 5
Accredited veterinarians and approved export programs
Division 4
Extended geographical operation of offences
Section 322
352
Export Control Bill 2019
No. , 2019
Division 4--Extended geographical operation of offences
1
322 Extended geographical operation of offences
2
Section 15.2 of the
Criminal Code
(extended geographical
3
jurisdiction--category B) applies to an offence against a provision
4
in Division 3.
5
Compliance and enforcement
Chapter 10
Introduction
Part 1
Section 323
No. , 2019
Export Control Bill 2019
353
Chapter 10--Compliance and enforcement
1
Part 1--Introduction
2
3
323 Simplified outline of this Part
4
This Part modifies the meaning of authorised officer
for the
5
purposes of this Chapter.
6
324 Modified meaning of
authorised officer
7
(1) For the purposes of this Chapter, and any other provision of this
8
Act to the extent that it relates to this Chapter,
authorised officer
9
means a Commonwealth authorised officer, or a State or Territory
10
authorised officer, who satisfies the requirements determined under
11
subsection (2).
12
(2) The Secretary must determine, in writing, training and qualification
13
requirements for authorised officers in relation to the performance
14
of functions or duties and the exercise of powers under this
15
Chapter or the Regulatory Powers Act.
16
(3) A determination made under subsection (2) is not a legislative
17
instrument.
18
Chapter 10
Compliance and enforcement
Part 2
Monitoring
Division 1
Introduction
Section 325
354
Export Control Bill 2019
No. , 2019
Part 2--Monitoring
1
Division 1--Introduction
2
325 Simplified outline of this Part
3
Authorised officers may enter premises under a warrant or with
4
consent of the occupier and exercise monitoring powers there
5
under Part 2 of the Regulatory Powers Act, for the purposes of
6
determining:
7
(a)
whether this Act has been, or is being, complied with; or
8
(b)
whether information given in compliance or purported
9
compliance with this Act is correct.
10
An authorised officer may be assisted by other persons in
11
exercising powers under that Part.
12
That Part contains the rules for obtaining a monitoring warrant, and
13
the powers and obligations of authorised officers in entering
14
premises under a monitoring warrant or with consent.
15
Compliance and enforcement
Chapter 10
Monitoring
Part 2
Monitoring under Part 2 of the Regulatory Powers Act
Division 2
Section 326
No. , 2019
Export Control Bill 2019
355
Division 2--Monitoring under Part 2 of the Regulatory
1
Powers Act
2
326 Basic monitoring powers under Part 2 of the Regulatory Powers
3
Act
4
Provisions subject to monitoring
5
(1) This Act is subject to monitoring under Part 2 of the Regulatory
6
Powers Act.
7
Note 1:
Part 2 of the Regulatory Powers Act creates a framework for
8
monitoring whether this Act has been complied with. It includes
9
powers of entry and inspection.
10
Note 2:
An authorised officer may, under Part 5 of this Chapter, enter certain
11
kinds of premises without a warrant or consent to exercise monitoring
12
powers.
13
Information subject to monitoring
14
(2) Information given in compliance or purported compliance with a
15
provision of this Act is subject to monitoring under Part 2 of the
16
Regulatory Powers Act.
17
Note:
Part 2 of the Regulatory Powers Act creates a framework for
18
monitoring whether the information is correct. It includes powers of
19
entry and inspection.
20
Related provisions, authorised applicant, authorised person,
21
issuing officer and relevant court
22
(3) For the purposes of Part 2 of the Regulatory Powers Act, as it
23
applies in relation to the provisions of this Act:
24
(a) each related provision (as defined in section 12 of this Act) is
25
related to the provisions of this Act; and
26
(b) an authorised officer is an authorised applicant; and
27
(c) an authorised officer is an authorised person; and
28
(d) an issuing officer (as defined in section 12 of this Act) is an
29
issuing officer; and
30
Chapter 10
Compliance and enforcement
Part 2
Monitoring
Division 2
Monitoring under Part 2 of the Regulatory Powers Act
Section 327
356
Export Control Bill 2019
No. , 2019
(e) a relevant court (as defined in section 12 of this Act) is the
1
relevant court.
2
Person assisting
3
(4) An authorised person may be assisted by other persons in
4
exercising powers or performing functions or duties under Part 2 of
5
the Regulatory Powers Act in relation to the provisions of this Act.
6
Note:
An authorised person may be assisted by other persons in exercising
7
powers or performing functions or duties referred to in this subsection
8
if the assistance is necessary and reasonable (see paragraph 23(1)(a) of
9
the Regulatory Powers Act).
10
Extension to external Territories
11
(5) Part 2 of the Regulatory Powers Act, as it applies in relation to a
12
provision of this Act, extends to every external Territory, and each
13
other area, to which the provision extends under subsection 8(2).
14
327 Modifications of Part 2 of the Regulatory Powers Act
15
Additional monitoring power
16
(1) For the purposes of Part 2 of the Regulatory Powers Act, the
17
additional powers referred to in subsection (2) are also taken to be
18
monitoring powers for the purposes of determining:
19
(a) whether a provision referred to in subsection 326(1) has
20
been, or is being, complied with; or
21
(b) the correctness of information referred to in
22
subsection 326(2).
23
(2) The additional monitoring powers are:
24
(a) the powers to take, test and analyse samples of any thing on
25
premises entered under Part 2 of the Regulatory Powers Act;
26
and
27
(b) the power to secure premises entered under Part 2 of the
28
Regulatory Powers Act; and
29
(c) the power to secure things on premises entered under Part 2
30
of the Regulatory Powers Act for the purpose of testing or
31
analysing those things.
32
Compliance and enforcement
Chapter 10
Monitoring
Part 2
Monitoring under Part 2 of the Regulatory Powers Act
Division 2
Section 327
No. , 2019
Export Control Bill 2019
357
Identity cards
1
(3) Part 2 of the Regulatory Powers Act applies in relation to the
2
provisions of this Act as if a reference in that Part to an identity
3
card were a reference to an identity card issued under section 306
4
of this Act.
5
(4) The following provisions of the Regulatory Powers Act do not
6
apply in relation to the provisions of this Act:
7
(a) the definition of
identity card
in section 4;
8
(b) sections 13 and 15;
9
(c) Division 8 of Part 2.
10
Premises
11
(5) Part 2 of the Regulatory Powers Act applies in relation to the
12
provisions of this Act as if a reference in that Part to premises were
13
a reference to premises as defined in section 12 of this Act.
14
Use of force in executing a warrant
15
(6) In executing a monitoring warrant:
16
(a) an authorised person may use such force against things as is
17
necessary and reasonable in the circumstances; and
18
(b) a person assisting the authorised person may use such force
19
against things as is necessary and reasonable in the
20
circumstances.
21
Chapter 10
Compliance and enforcement
Part 3
Investigation
Division 1
Introduction
Section 328
358
Export Control Bill 2019
No. , 2019
Part 3--Investigation
1
Division 1--Introduction
2
328 Simplified outline of this Part
3
An authorised officer may, under Part 3 of the Regulatory Powers
4
Act, gather material that relates to the contravention of offence and
5
civil penalty provisions in this Act.
6
Under that Part:
7
(a)
an authorised officer may enter premises if there are
8
reasonable grounds for suspecting that there may be
9
such material on the premises; and
10
(b)
entry must be with the consent of the occupier of the
11
premises or under an investigation warrant; and
12
(c)
an authorised officer who enters premises may exercise
13
investigation powers.
14
An authorised officer may be assisted by other persons in
15
exercising powers under Part 3 of the Regulatory Powers Act.
16
That Part contains the rules for obtaining an investigation warrant,
17
and the obligations and powers of authorised officers in entering
18
premises under an investigation warrant or with consent.
19
Compliance and enforcement
Chapter 10
Investigation
Part 3
Investigating under Part 3 of the Regulatory Powers Act
Division 2
Section 329
No. , 2019
Export Control Bill 2019
359
Division 2--Investigating under Part 3 of the Regulatory
1
Powers Act
2
329 Basic investigation powers under Part 3 of the Regulatory
3
Powers Act
4
Provisions subject to investigation
5
(1) A provision is subject to investigation under Part 3 of the
6
Regulatory Powers Act if it is:
7
(a) an offence against this Act; or
8
(b) a civil penalty provision of this Act; or
9
(c) an offence against the
Crimes Act 1914
or the
Criminal Code
10
that relates to this Act.
11
Note 1:
Part 3 of the Regulatory Powers Act creates a framework for
12
investigating whether a provision has been contravened. It includes
13
powers of entry, search and seizure.
14
Note 2:
An authorised officer may, under Part 5 of this Chapter, enter certain
15
kinds of premises without a warrant or consent to exercise
16
investigation and seizure powers.
17
Related provisions, authorised applicant, authorised person,
18
issuing officer, relevant chief executive and relevant court
19
(2) For the purposes of Part 3 of the Regulatory Powers Act, as it
20
applies in relation to evidential material that relates to a provision
21
referred to in subsection (1):
22
(a) each related provision (as defined in section 12 of this Act) is
23
related to that evidential material; and
24
(b) an authorised officer is an authorised applicant; and
25
(c) an authorised officer is an authorised person; and
26
(d) an issuing officer (as defined in section 12 of this Act) is an
27
issuing officer; and
28
(e) the Secretary is the relevant chief executive; and
29
(f) a relevant court (as defined in section 12 of this Act) is the
30
relevant court.
31
Chapter 10
Compliance and enforcement
Part 3
Investigation
Division 2
Investigating under Part 3 of the Regulatory Powers Act
Section 330
360
Export Control Bill 2019
No. , 2019
Person assisting
1
(3) An authorised person may be assisted by other persons in
2
exercising powers or performing functions or duties under Part 3 of
3
the Regulatory Powers Act in relation to evidential material that
4
relates to a provision referred to in subsection (1).
5
Note:
An authorised person may be assisted by other persons in exercising
6
powers or performing functions or duties referred to in this subsection
7
if the assistance is necessary and reasonable (see paragraph 53(1)(a) of
8
the Regulatory Powers Act).
9
Extension to external Territories
10
(4) Part 3 of the Regulatory Powers Act, as it applies in relation to a
11
provision referred to in subsection (1), extends to every external
12
Territory, and each other area, to which the provision extends
13
under subsection 8(2).
14
330 Modifications of Part 3 of the Regulatory Powers Act
15
Additional investigation power
16
(1) For the purposes of Part 3 of the Regulatory Powers Act, the
17
additional powers referred to in subsection (2) are also taken to be
18
investigation powers in relation to evidential material that relates to
19
a provision referred to in subsection 329(1).
20
(2) The additional investigation powers are the powers to take, test and
21
analyse samples of any thing on premises entered under Part 3 of
22
the Regulatory Powers Act.
23
Identity cards
24
(3) Part 3 of the Regulatory Powers Act applies in relation to a
25
provision referred to in subsection 329(1) of this Act as if a
26
reference in that Part to an identity card were a reference to an
27
identity card issued under section 306 of this Act.
28
(4) The following provisions of the Regulatory Powers Act do not
29
apply in relation to a provision referred to in subsection 329(1) of
30
this Act:
31
Compliance and enforcement
Chapter 10
Investigation
Part 3
Investigating under Part 3 of the Regulatory Powers Act
Division 2
Section 330
No. , 2019
Export Control Bill 2019
361
(a) the definition of
identity card
in section 4;
1
(b) section 43;
2
(c) Division 9 of Part 3.
3
Premises
4
(5) Part 3 of the Regulatory Powers Act applies in relation to
5
evidential material that relates to a provision referred to in
6
subsection 329(1) of this Act as if a reference in that Part to
7
premises were a reference to premises as defined in section 12 of
8
this Act.
9
Use of force in executing a warrant
10
(6) In executing an investigation warrant:
11
(a) an authorised person may use such force against things as is
12
necessary and reasonable in the circumstances; and
13
(b) a person assisting the authorised person may use such force
14
against things as is necessary and reasonable in the
15
circumstances.
16
Chapter 10
Compliance and enforcement
Part 4
Entry to adjacent premises
Division 1
Introduction
Section 331
362
Export Control Bill 2019
No. , 2019
Part 4--Entry to adjacent premises
1
Division 1--Introduction
2
331 Simplified outline of this Part
3
An authorised officer may enter premises adjacent to other
4
premises to gain access to the other premises. The entry must be
5
with the consent of the occupier of the adjacent premises or under
6
an adjacent premises warrant issued by an issuing officer.
7
An authorised officer who enters adjacent premises under this
8
Part is subject to certain obligations and may exercise certain
9
powers.
10
If adjacent premises are entered under an adjacent premises
11
warrant, the appropriate person for the adjacent premises may
12
observe the execution of the warrant and must provide facilities
13
and assistance for the effective exercise of powers on the premises.
14
332 Modified meaning of
premises
15
In this Part,
premises
does not include a conveyance.
16
Compliance and enforcement
Chapter 10
Entry to adjacent premises
Part 4
Entering adjacent premises to gain access to other premises
Division 2
Section 333
No. , 2019
Export Control Bill 2019
363
Division 2--Entering adjacent premises to gain access to
1
other premises
2
333 Entering adjacent premises to gain access to other premises
3
(1) An authorised officer may enter any premises (
adjacent premises
)
4
if it is necessary to do so for the purpose of gaining access to other
5
premises to perform functions or duties, or exercise powers, as an
6
authorised officer (including as an authorised person for the
7
purposes of Part 2 or 3 of the Regulatory Powers Act as those Parts
8
apply in relation to this Act).
9
(2) However, an authorised officer is not authorised to enter adjacent
10
premises under subsection (1) unless:
11
(a) the occupier of the premises has consented to the entry and
12
the authorised officer has shown the authorised officer's
13
identity card if required by the occupier; or
14
(b) the entry is made under an adjacent premises warrant.
15
Note:
For the issue of an adjacent premises warrant, and the obligations and
16
powers of authorised officers in entering premises under an adjacent
17
premises warrant or with consent, see Divisions 3 and 4 of this Part
18
and Parts 2 and 3 of the Regulatory Powers Act (as they apply because
19
of Parts 2 and 3 of this Chapter).
20
334 Entry under adjacent premises warrant
21
An authorised officer who enters premises under an adjacent
22
premises warrant, and any person assisting, must take all
23
reasonable steps to ensure that they cause as little inconvenience to
24
the occupier of the premises as is practicable.
25
Chapter 10
Compliance and enforcement
Part 4
Entry to adjacent premises
Division 3
Adjacent premises warrants
Section 335
364
Export Control Bill 2019
No. , 2019
Division 3--Adjacent premises warrants
1
335 Application and issue of adjacent premises warrant
2
Application for warrant
3
(1) An authorised officer may apply to an issuing officer for an
4
adjacent premises warrant in relation to premises.
5
Issue of warrant
6
(2) The issuing officer may issue the warrant if the issuing officer is
7
satisfied, by information on oath or affirmation, that it is
8
reasonably necessary that one or more authorised officers should
9
have access to the premises for the purpose of gaining access to
10
other premises to perform functions or duties, or exercise powers,
11
as an authorised officer for the purposes of:
12
(a) Part 2 or 3 of the Regulatory Powers Act as those Parts apply
13
in relation to this Act; or
14
(b) Part 5 of this Chapter.
15
(3) However, the issuing officer must not issue the warrant unless the
16
authorised officer or some other person has given to the issuing
17
officer, either orally or by affidavit, such further information (if
18
any) as the issuing officer requires concerning the grounds on
19
which the issue of the warrant is being sought.
20
Content of warrant
21
(4) The warrant must:
22
(a) describe the premises to which the warrant relates; and
23
(b) state that it is an adjacent premises warrant; and
24
(c) state the purpose for which the warrant is issued; and
25
(d) authorise one or more authorised officers (whether or not
26
named in the warrant), from time to time while the warrant
27
remains in force, to enter the premises, and to remain on the
28
premises for such period as is reasonably necessary, for the
29
purpose of gaining access to other premises to perform
30
Compliance and enforcement
Chapter 10
Entry to adjacent premises
Part 4
Adjacent premises warrants
Division 3
Section 335
No. , 2019
Export Control Bill 2019
365
functions or duties, or exercise powers, as an authorised
1
officer for the purposes of:
2
(i) Part 2 or 3 of the Regulatory Powers Act as those Parts
3
apply in relation to this Act; or
4
(ii) Part 5 of this Chapter; and
5
(e) state whether entry is authorised to be made at any time of
6
the day or during specified hours of the day; and
7
(f) specify the day (not more than 14 days after the issue of the
8
warrant) on which the warrant ceases to be in force.
9
Chapter 10
Compliance and enforcement
Part 4
Entry to adjacent premises
Division 4
Obligations and powers of authorised officers
Section 336
366
Export Control Bill 2019
No. , 2019
Division 4--Obligations and powers of authorised officers
1
336 Consent
2
(1) Before obtaining the consent of an occupier of premises for the
3
purposes of paragraph 333(2)(a), an authorised officer must inform
4
the occupier of the following:
5
(a) the reasons for entering the premises;
6
(b) that the occupier may refuse consent.
7
(2) A consent has no effect unless the consent is voluntary.
8
(3) A consent may be expressed to be limited to entry during a
9
particular period. If so, the consent has effect for that period unless
10
the consent is withdrawn before the end of that period.
11
(4) A consent that is not limited as referred to in subsection (3) has
12
effect until the consent is withdrawn.
13
(5) If an authorised officer entered premises because of the consent of
14
the occupier of the premises, the authorised officer, and any person
15
assisting the authorised officer, must leave the premises if the
16
consent ceases to have effect.
17
337 Announcement before entry under warrant
18
(1) Before an authorised officer enters premises under an adjacent
19
premises warrant, the authorised officer must:
20
(a) announce that the authorised officer is authorised to enter the
21
premises; and
22
(b) if an appropriate person for the premises is present at the
23
premises:
24
(i) ensure that the identity card of the authorised officer is
25
shown to the appropriate person; and
26
(ii) give any person present at the premises an opportunity
27
to allow entry to the premises.
28
Compliance and enforcement
Chapter 10
Entry to adjacent premises
Part 4
Obligations and powers of authorised officers
Division 4
Section 338
No. , 2019
Export Control Bill 2019
367
Exception for some adjacent premises warrants
1
(2) However, an authorised officer is not required to comply with
2
subsection (1) if:
3
(a) entry to the premises is to be made for the purposes of
4
executing an investigation warrant or monitoring warrant on
5
other premises; and
6
(b) the authorised officer believes on reasonable grounds that
7
immediate entry to the premises is required:
8
(i) to ensure the safety of a person; or
9
(ii) to ensure that the effective execution of the
10
investigation warrant or monitoring warrant is not
11
frustrated.
12
(3) If:
13
(a) an authorised officer does not comply with subsection (1)
14
because of subsection (2); and
15
(b) an appropriate person for the premises is present at the
16
premises;
17
the authorised officer must, as soon as practicable after entering the
18
premises, show the authorised officer's identity card to the
19
appropriate person.
20
338 Authorised officer to be in possession of warrant
21
An authorised officer executing an adjacent premises warrant must
22
be in possession of the warrant or a copy of the warrant.
23
339 Details of warrant etc. to be provided
24
(1) An authorised officer must comply with subsection (2) if:
25
(a) an adjacent premises warrant is being executed in relation to
26
premises; and
27
(b) an appropriate person for the premises is present at the
28
premises while the warrant is being executed.
29
(2) The authorised officer must, as soon as practicable:
30
Chapter 10
Compliance and enforcement
Part 4
Entry to adjacent premises
Division 4
Obligations and powers of authorised officers
Section 340
368
Export Control Bill 2019
No. , 2019
(a) make a copy of the warrant available to the appropriate
1
person (which need not include the signature of the issuing
2
officer who issued it); or
3
(b) inform the appropriate person of the rights and
4
responsibilities of the person under Division 5.
5
340 Use of force in executing a warrant
6
In executing an adjacent premises warrant, an authorised officer
7
may use such force against things as is necessary and reasonable in
8
the circumstances.
9
Compliance and enforcement
Chapter 10
Entry to adjacent premises
Part 4
Appropriate person's rights and responsibilities
Division 5
Section 341
No. , 2019
Export Control Bill 2019
369
Division 5--Appropriate person's rights and
1
responsibilities
2
341 Right to observe execution of warrant
3
(1) An appropriate person for premises to which an adjacent premises
4
warrant relates is entitled to observe the execution of the warrant if
5
the person is present at the premises while the warrant is being
6
executed.
7
(2) The right to observe the execution of the warrant ceases if the
8
appropriate person impedes that execution.
9
(3) This section does not prevent the execution of the warrant in 2 or
10
more areas of the premises at the same time.
11
342 Responsibility to provide facilities and assistance
12
(1) An appropriate person for premises to which an adjacent premises
13
warrant relates must provide the following persons with all
14
reasonable facilities and assistance for the effective exercise of
15
their powers while on the premises:
16
(a) an authorised officer executing the warrant;
17
(b) each person assisting the authorised officer.
18
Fault-based offence
19
(2) A person commits an offence if:
20
(a) the person is subject to subsection (1); and
21
(b) the person fails to comply with that subsection.
22
Penalty: 30 penalty units.
23
Chapter 10
Compliance and enforcement
Part 4
Entry to adjacent premises
Division 6
Powers of issuing officers
Section 343
370
Export Control Bill 2019
No. , 2019
Division 6--Powers of issuing officers
1
343 Powers of issuing officers
2
Powers conferred personally
3
(1) A power conferred on an issuing officer by this Part is conferred on
4
the issuing officer:
5
(a) in a personal capacity; and
6
(b) not as a court or a member of a court.
7
Powers need not be accepted
8
(2) The issuing officer need not accept the power conferred.
9
Protection and immunity
10
(3) An issuing officer exercising the power has the same protection
11
and immunity as if the issuing officer were exercising the power:
12
(a) as the court of which the issuing officer is a member; or
13
(b) as a member of the court of which the issuing officer is a
14
member.
15
Compliance and enforcement
Chapter 10
Entering and exercising powers on premises without a warrant or consent
Part 5
Introduction
Division 1
Section 344
No. , 2019
Export Control Bill 2019
371
Part 5--Entering and exercising powers on
1
premises without a warrant or consent
2
Division 1--Introduction
3
344 Simplified outline of this Part
4
An authorised officer may enter certain kinds of premises without a
5
warrant or consent to exercise monitoring powers or investigation
6
and seizure powers.
7
An authorised officer who enters premises under this Part is subject
8
to certain obligations and may exercise certain powers.
9
The appropriate person for the premises may observe the exercise
10
of powers by the authorised officer and must provide facilities and
11
assistance.
12
345 Premises to which this Part applies
13
This Part applies in relation to the following premises (in this
14
Part called
relevant premises
):
15
(a) premises that are, or that form part of, a registered
16
establishment;
17
(b) premises in or on, or that form part of, an accredited
18
property.
19
Chapter 10
Compliance and enforcement
Part 5
Entering and exercising powers on premises without a warrant or consent
Division 2
Monitoring and searching relevant premises
Section 346
372
Export Control Bill 2019
No. , 2019
Division 2--Monitoring and searching relevant premises
1
346 Monitoring relevant premises
2
(1) An authorised officer may enter relevant premises for the purposes
3
of:
4
(a) determining whether this Act has been, or is being, complied
5
with; or
6
(b) determining whether information provided for the purposes
7
of this Act is correct.
8
Note:
The expression
this Act
includes the Regulatory Powers Act as it
9
applies in relation to this Act (see the definition of
this Act
in
10
section 12).
11
(2) The authorised officer may enter the premises during the business
12
hours of the premises.
13
Note:
For the obligations and powers of authorised officers entering
14
premises under this section, see Division 3.
15
(3) Subdivision A of Division 2 of Part 2, and section 29, of the
16
Regulatory Powers Act apply in accordance with Part 2 of this
17
Chapter as if:
18
(a) entry to the premises were made under section 18 of the
19
Regulatory Powers Act under a monitoring warrant; and
20
(b) for the purposes of those provisions of the Regulatory Powers
21
Act, relevant data included information relevant to deciding
22
whether to exercise a power under this Act.
23
Note 1:
Subdivision A of Division 2 of Part 2, and section 29, of the
24
Regulatory Powers Act are about monitoring powers and
25
compensation for damage to electronic equipment operated under
26
those powers.
27
Note 2:
Part 2 of this Chapter expands the monitoring powers under
28
Subdivision A of Division 2 of Part 2 of the Regulatory Powers Act.
29
(4) The application of Subdivision A of Division 2 of Part 2, and
30
section 29, of the Regulatory Powers Act under subsection (3) of
31
this section is in addition to their application under Part 2 of this
32
Chapter.
33
Compliance and enforcement
Chapter 10
Entering and exercising powers on premises without a warrant or consent
Part 5
Monitoring and searching relevant premises
Division 2
Section 347
No. , 2019
Export Control Bill 2019
373
(5) If the relevant premises are a conveyance, an authorised officer
1
may stop and detain the conveyance for the purpose of exercising
2
any of the monitoring powers under Subdivision A of Division 2 of
3
Part 2 of the Regulatory Powers Act as it applies in accordance
4
with Part 2 of this Chapter and subsection (3) of this section.
5
347 Offence-related searches and seizures
6
(1) An authorised officer may enter relevant premises if the officer has
7
reasonable grounds for suspecting that there may be, on the
8
premises:
9
(a) a particular thing with respect to which an offence provision
10
or a civil penalty provision, that is a provision referred to in
11
subsection 329(1), has been contravened or is suspected, on
12
reasonable grounds, to have been contravened; or
13
(b) a particular thing that there are reasonable grounds for
14
suspecting will afford evidence as to the contravention of
15
such an offence provision or a civil penalty provision; or
16
(c) a particular thing that there are reasonable grounds for
17
suspecting is intended to be used for the purpose of
18
contravening such an offence provision or a civil penalty
19
provision.
20
Note:
Subsection 329(1) refers to provisions for offences against this Act,
21
provisions for offences against the
Crimes Act 1914
or the
Criminal
22
Code
relating to this Act and civil penalty provisions of this Act.
23
(2) The authorised officer may enter the premises at any time.
24
Note:
For the obligations and powers of authorised officers entering
25
premises under this section, see Division 3.
26
(3) Divisions 2 and 5 of Part 3, and section 61, of the Regulatory
27
Powers Act apply in accordance with Part 3 of this Chapter as if:
28
(a) entry to the premises were made under section 48 of that Act
29
under an investigation warrant; and
30
(b) the thing referred to in subsection (1) of this section were
31
evidential material of a kind specified in an investigation
32
warrant.
33
Chapter 10
Compliance and enforcement
Part 5
Entering and exercising powers on premises without a warrant or consent
Division 2
Monitoring and searching relevant premises
Section 347
374
Export Control Bill 2019
No. , 2019
Note 1:
Divisions 2 and 5 of Part 3, and section 61, of the Regulatory Powers
1
Act are about investigation powers, seizure, and compensation for
2
damage to electronic equipment operated under investigation powers.
3
Note 2:
Part 3 of this Chapter expands the investigation powers under
4
Subdivision A of Division 2 of Part 3 of the Regulatory Powers Act.
5
(4) The application of Divisions 2 and 5 of Part 3, and section 61, of
6
the Regulatory Powers Act under subsection (3) of this section is in
7
addition to their application under Part 3 of this Chapter.
8
(5) If the relevant premises are a conveyance, an authorised officer
9
may stop and detain the conveyance for the purpose of exercising
10
an investigation power under Division 2 of Part 3 of the Regulatory
11
Powers Act as it applies because of Part 3 of this Chapter and
12
subsection (3) of this section.
13
Compliance and enforcement
Chapter 10
Entering and exercising powers on premises without a warrant or consent
Part 5
Obligations and powers of authorised officers
Division 3
Section 348
No. , 2019
Export Control Bill 2019
375
Division 3--Obligations and powers of authorised officers
1
348 Announcement before entry
2
Before an authorised officer enters relevant premises under
3
section 346 or 347, the authorised officer must:
4
(a) announce that the authorised officer is authorised to enter the
5
premises; and
6
(b) if the appropriate person for the premises is present at the
7
premises:
8
(i) ensure that the identity card of the authorised officer is
9
shown to the appropriate person; and
10
(ii) explain the reasons for entering the premises.
11
349 Use of force in entering premises
12
In entering relevant premises under section 347, and while on those
13
premises, an authorised officer, or a person assisting an authorised
14
officer, may use such force against things as is necessary and
15
reasonable in the circumstances.
16
Chapter 10
Compliance and enforcement
Part 5
Entering and exercising powers on premises without a warrant or consent
Division 4
Appropriate person's rights and responsibilities
Section 350
376
Export Control Bill 2019
No. , 2019
Division 4--Appropriate person's rights and
1
responsibilities
2
350 Right to observe exercise of powers
3
(1) An appropriate person for relevant premises entered under
4
section 346 or 347 is entitled to observe the exercise of powers
5
while on the premises if the appropriate person is present at the
6
premises while those powers are being exercised.
7
(2) The right to observe the exercise of powers ceases if the
8
appropriate person impedes the exercise of those powers.
9
(3) This section does not prevent powers being exercised in 2 or more
10
areas of the premises at the same time.
11
351 Responsibility to provide facilities and assistance
12
(1) An appropriate person for relevant premises entered under
13
section 346 or 347 must provide the following persons with all
14
reasonable facilities and assistance for the effective exercise of
15
their powers while on the premises:
16
(a) any authorised officer who enters the premises;
17
(b) each person assisting the authorised officer.
18
Fault-based offence
19
(2) A person commits an offence if:
20
(a) the person is subject to subsection (1); and
21
(b) the person fails to comply with that subsection.
22
Penalty: 30 penalty units.
23
Compliance and enforcement
Chapter 10
Powers in emergency situations
Part 6
Introduction
Division 1
Section 352
No. , 2019
Export Control Bill 2019
377
Part 6--Powers in emergency situations
1
Division 1--Introduction
2
352 Simplified outline of this Part
3
An authorised officer may, in serious and urgent circumstances,
4
and without consent or a warrant, secure evidential material in or
5
on certain premises or stop and search a conveyance.
6
Chapter 10
Compliance and enforcement
Part 6
Powers in emergency situations
Division 2
Powers that may be exercised in or on premises in emergency situations
Section 353
378
Export Control Bill 2019
No. , 2019
Division 2--Powers that may be exercised in or on
1
premises in emergency situations
2
353 Securing evidential material without consent or warrant in
3
emergency situation
4
(1) This section applies if an authorised officer has entered premises
5
under:
6
(a) Part 2 of the Regulatory Powers Act, as that Part applies in
7
relation to this Act; or
8
(b) section 346 (monitoring certain premises without consent or
9
a warrant).
10
(2) If the authorised officer reasonably suspects that:
11
(a) particular evidential material is in or on the premises; and
12
(b) it is necessary to secure the evidential material in order to
13
prevent it from being concealed, lost or destroyed; and
14
(c) it is necessary to do so without the authority of an
15
investigation warrant because the circumstances are serious
16
and urgent;
17
the authorised officer may secure the evidential material if the
18
authorised officer finds it there pending the obtaining of an
19
investigation warrant to seize it.
20
354 Stopping and searching conveyance without warrant in
21
emergency situation
22
(1) This section applies if an authorised officer reasonably suspects
23
that:
24
(a) particular evidential material is in or on a conveyance; and
25
(b) it is necessary to exercise a power under subsection (2) in
26
order to prevent the evidential material being concealed, lost
27
or destroyed; and
28
(c) it is necessary to exercise the power without the authority of
29
an investigation warrant because the circumstances are
30
serious and urgent.
31
Compliance and enforcement
Chapter 10
Powers in emergency situations
Part 6
Powers that may be exercised in or on premises in emergency situations
Division 2
Section 354
No. , 2019
Export Control Bill 2019
379
Authorised officer may stop, detain and search conveyance and
1
secure evidential material
2
(2) The authorised officer may:
3
(a) stop and detain the conveyance; and
4
(b) search the conveyance, and anything in or on the conveyance,
5
for the evidential material; and
6
(c) secure the evidential material if the authorised officer finds it
7
there pending the obtaining of an investigation warrant to
8
seize it.
9
(3) If, in the course of searching for the evidential material, the
10
authorised officer finds other evidential material, the authorised
11
officer may secure that other evidential material, pending the
12
obtaining of an investigation warrant to seize it, if the authorised
13
officer reasonably suspects that:
14
(a) it is necessary to secure it in order to prevent its concealment,
15
loss or destruction; and
16
(b) it is necessary to secure it without the authority of an
17
investigation warrant because the circumstances are serious
18
and urgent.
19
Obligations and powers of authorised officers
20
(4) In exercising a power under subsection (2) or (3) in relation to a
21
conveyance, the authorised officer:
22
(a) must search the conveyance in a public place or in another
23
place to which members of the public have ready access; and
24
(b) must not detain the conveyance for longer than is necessary
25
and reasonable to search it and anything found in or on it;
26
and
27
(c) may use such force against things as is necessary and
28
reasonable in the circumstances.
29
(5) However, the authorised officer must not damage the conveyance,
30
or anything found in or on the conveyance, by forcing open a part
31
of the conveyance or thing unless:
32
Chapter 10
Compliance and enforcement
Part 6
Powers in emergency situations
Division 2
Powers that may be exercised in or on premises in emergency situations
Section 354
380
Export Control Bill 2019
No. , 2019
(a) the person (if any) apparently in charge of the conveyance
1
has been given a reasonable opportunity to open that part or
2
thing; or
3
(b) it is not possible to give that person such an opportunity.
4
Compliance and enforcement
Chapter 10
Civil penalties
Part 7
Introduction
Division 1
Section 355
No. , 2019
Export Control Bill 2019
381
Part 7--Civil penalties
1
Division 1--Introduction
2
355 Simplified outline of this Part
3
Civil penalty orders may be sought under Part 4 of the Regulatory
4
Powers Act from a relevant court in relation to contraventions of
5
civil penalty provisions.
6
Chapter 10
Compliance and enforcement
Part 7
Civil penalties
Division 2
Civil penalties under Part 4 of the Regulatory Powers Act
Section 356
382
Export Control Bill 2019
No. , 2019
Division 2--Civil penalties under Part 4 of the Regulatory
1
Powers Act
2
356 Basic operation of civil penalties under Part 4 of the Regulatory
3
Powers Act
4
Enforceable civil penalty provisions
5
(1) Each civil penalty provision of this Act is enforceable under Part 4
6
of the Regulatory Powers Act.
7
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
8
be enforced by obtaining an order for a person to pay a pecuniary
9
penalty for the contravention of the provision.
10
Authorised applicant
11
(2) For the purposes of Part 4 of the Regulatory Powers Act, the
12
Secretary is an authorised applicant in relation to the civil penalty
13
provisions referred to in subsection (1).
14
Relevant court
15
(3) For the purposes of Part 4 of the Regulatory Powers Act, each
16
relevant court (as defined in section 12 of this Act) is a relevant
17
court in relation to the civil penalty provisions referred to in
18
subsection (1).
19
Extension to external Territories
20
(4) Part 4 of the Regulatory Powers Act, as it applies in relation to a
21
civil penalty provision referred to in subsection (1), extends to
22
every external Territory, and each other area, to which the
23
provision extends under subsection 8(2).
24
Compliance and enforcement
Chapter 10
Infringement notices
Part 8
Introduction
Division 1
Section 358
No. , 2019
Export Control Bill 2019
383
Part 8--Infringement notices
1
Division 1--Introduction
2
358 Simplified outline of this Part
3
A person may be given an infringement notice under Part 5 of the
4
Regulatory Powers Act for contravening certain strict liability
5
offence provisions and civil penalty provisions of this Act.
6
A person who is given an infringement notice may choose to pay
7
an amount as an alternative to having court proceedings brought
8
against the person for the contravention. If the person does not
9
choose to pay the amount, proceedings can be brought against the
10
person for the contravention.
11
Chapter 10
Compliance and enforcement
Part 8
Infringement notices
Division 2
Infringement notices under Part 5 of the Regulatory Powers Act
Section 359
384
Export Control Bill 2019
No. , 2019
Division 2--Infringement notices under Part 5 of the
1
Regulatory Powers Act
2
359 Basic provisions for infringement notices under Part 5 of the
3
Regulatory Powers Act
4
Provisions subject to an infringement notice
5
(1) The provisions listed in the following table are subject to an
6
infringement notice under Part 5 of the Regulatory Powers Act:
7
8
Provisions that are subject to an infringement notice
Item
Provision
1
Subsection 46(4)
2
Subsection 47(4)
3
Subsection 66(3)
4
Subsection 74(3)
5
Subsection 76(2)
6
Subsection 107(3)
7
Subsection 108(2)
8
Subsection 109(2)
9
Subsection 145(3)
10
Subsection 146(2)
11
Subsection 147(3)
12
Subsection 159(4)
13
Subsection 185(3)
14
Subsection 186(2)
15
Subsection 187(3)
16
Subsection 188(3)
17
Subsection 218(3)
18
Subsection 219(2)
19
Subsection 235(3)
20
Subsection 236(2)
Compliance and enforcement
Chapter 10
Infringement notices
Part 8
Infringement notices under Part 5 of the Regulatory Powers Act
Division 2
Section 359
No. , 2019
Export Control Bill 2019
385
Provisions that are subject to an infringement notice
Item
Provision
21
Subsection 240(3)
22
Subsection 244(3)
23
Subsection 298B(3)
24
Subsection 304(3)
25
Subsection 305(5)
26
Subsection 307(3)
27
Section 316
28
Section 317
29
Section 319
30
Subsection 320(3)
31
Subsection 321(2)
32
Subsection 364D(2)
33
Subsection 374(6)
34
Subsection 378(3)
35
Subsection 408(3)
36
Subsection 417(2)
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
1
infringement notices in relation to provisions.
2
(2) For the purposes of Part 5 of the Regulatory Powers Act:
3
(a) the Secretary is an infringement officer in relation to the
4
provisions referred to in subsection (1); and
5
(b) the Secretary is the relevant chief executive in relation to the
6
provisions referred to in subsection (1).
7
Extension to external Territories
8
(3) Part 5 of the Regulatory Powers Act, as it applies in relation to a
9
provision referred to in subsection (1), extends to every external
10
Territory, and each other area, to which the provision extends
11
under subsection 8(2).
12
Chapter 10
Compliance and enforcement
Part 8
Infringement notices
Division 2
Infringement notices under Part 5 of the Regulatory Powers Act
Section 360
386
Export Control Bill 2019
No. , 2019
360 Modifications of Part 5 of the Regulatory Powers Act
1
(1) Instead of stating the matters referred to in paragraph 104(1)(d) of
2
the Regulatory Powers Act, an infringement notice must state the
3
name and contact details of the person who gave the notice, and
4
how the person has power to issue the infringement notice.
5
Amount payable under the infringement notice
6
(2) The amount to be stated in an infringement notice for the purposes
7
of paragraph 104(1)(f) of the Regulatory Powers Act for the
8
alleged contravention of the provision by the person must be the
9
least of:
10
(a) one-fifth of the maximum penalty that a court could impose
11
on the person for that contravention; and
12
(b) 12 penalty units where the person is an individual, or 60
13
penalty units where the person is a body corporate; and
14
(c) if the rules specify a different number of penalty units for the
15
alleged contravention of the provision by the person--that
16
number of penalty units.
17
(3) Rules made for the purposes of paragraph (2)(c) may specify
18
different numbers of penalty units for an alleged contravention of a
19
particular provision referred to in the table in subsection 359(1) by
20
a person depending on whether the person is an individual or a
21
body corporate.
22
Compliance and enforcement
Chapter 10
Enforceable undertakings
Part 9
Introduction
Division 1
Section 361
No. , 2019
Export Control Bill 2019
387
Part 9--Enforceable undertakings
1
Division 1--Introduction
2
361 Simplified outline of this Part
3
Undertakings to comply with this Act may be accepted and
4
enforced under Part 6 of the Regulatory Powers Act.
5
Under that Part:
6
(a)
the Secretary may accept an undertaking relating to
7
compliance with a provision of this Act; and
8
(b)
the undertaking may be enforced in a relevant court; and
9
(c)
the relevant court may make orders, including an order
10
directing compliance, an order requiring any financial
11
benefit from the failure to comply to be surrendered and
12
an order for damages.
13
Chapter 10
Compliance and enforcement
Part 9
Enforceable undertakings
Division 2
Accepting and enforcing undertakings under Part 6 of the Regulatory
Powers Act
Section 362
388
Export Control Bill 2019
No. , 2019
Division 2--Accepting and enforcing undertakings under
1
Part 6 of the Regulatory Powers Act
2
362 Enforceable undertakings
3
Enforceable provisions
4
(1) The provisions of this Act are enforceable under Part 6 of the
5
Regulatory Powers Act.
6
Note:
Part 6 of the Regulatory Powers Act creates a framework for accepting
7
and enforcing undertakings relating to compliance with provisions.
8
Authorised person
9
(2) For the purposes of Part 6 of the Regulatory Powers Act, the
10
Secretary is an authorised person in relation to the provisions
11
referred to in subsection (1).
12
Relevant court
13
(3) For the purposes of Part 6 of the Regulatory Powers Act, each
14
relevant court (as defined in section 12 of this Act) is a relevant
15
court in relation to the provisions referred to in subsection (1).
16
Extension to external Territories
17
(4) Part 6 of the Regulatory Powers Act, as it applies in relation to a
18
provision referred to in subsection (1), extends to every external
19
Territory, and each other area, to which the provision extends
20
under subsection 8(2).
21
Compliance and enforcement
Chapter 10
Injunctions
Part 10
Introduction
Division 1
Section 363
No. , 2019
Export Control Bill 2019
389
Part 10--Injunctions
1
Division 1--Introduction
2
363 Simplified outline of this Part
3
Injunctions (including interim injunctions) under Part 7 of the
4
Regulatory Powers Act may be used to restrain a person from
5
contravening a provision of this Act, or to compel compliance with
6
a provision of this Act.
7
Chapter 10
Compliance and enforcement
Part 10
Injunctions
Division 2
Injunctions under Part 7 of the Regulatory Powers Act
Section 364
390
Export Control Bill 2019
No. , 2019
Division 2--Injunctions under Part 7 of the Regulatory
1
Powers Act
2
364 Injunctions
3
Enforceable provisions
4
(1) The provisions of this Act are enforceable under Part 7 of the
5
Regulatory Powers Act.
6
Note:
Part 7 of the Regulatory Powers Act creates a framework for using
7
injunctions to enforce provisions.
8
Authorised person
9
(2) For the purposes of Part 7 of the Regulatory Powers Act, the
10
Secretary is an authorised person in relation to the provisions
11
referred to in subsection (1).
12
Relevant court
13
(3) For the purposes of Part 7 of the Regulatory Powers Act, each
14
relevant court (as defined in section 12 of this Act) is a relevant
15
court in relation to the provisions referred to in subsection (1).
16
Extension to external Territories
17
(4) Part 7 of the Regulatory Powers Act, as it applies in relation to a
18
provision referred to in subsection (1), extends to every external
19
Territory, and each other area, to which the provision extends
20
under subsection 8(2).
21
Compliance and enforcement
Chapter 10
Liability of executive officers and adverse publicity orders
Part 10A
Section 364A
No. , 2019
Export Control Bill 2019
391
Part 10A--Liability of executive officers and
1
adverse publicity orders
2
3
364A Simplified outline of this Part
4
An executive officer of a body corporate may commit an offence
5
or be liable to a civil penalty if the executive officer knew, or was
6
reckless or negligent, about contraventions of certain provisions by
7
the body corporate and failed to take all reasonable steps to prevent
8
the contravention.
9
A body corporate must not indemnify a person against certain
10
liabilities incurred by the person as an executive officer of the body
11
corporate.
12
A relevant court may make an adverse publicity order in relation to
13
a person who has been ordered to pay a penalty for a contravention
14
of, or has been found guilty of an offence against, a provision of
15
this Act.
16
364B Criminal liability for executive officers of bodies corporate
17
Basic contravention
18
(1) An executive officer of a body corporate commits an offence if:
19
(a) the body corporate commits an offence by contravening any
20
of the following provisions:
21
(i) subsection 30(2);
22
(ii) subsection 33(2);
23
(iii) subsection 33(6);
24
(iv) subsection 34(2);
25
(v) subsection 37(2);
26
(vi) subsection 37(6);
27
(vii) subsection 38(2);
28
(viii) subsection 41(2);
29
(ix) subsection 41(5);
30
Chapter 10
Compliance and enforcement
Part 10A
Liability of executive officers and adverse publicity orders
Section 364B
392
Export Control Bill 2019
No. , 2019
(x) subsection 42(2);
1
(xi) subsection 45(2);
2
(xii) subsection 45(5);
3
(xiii) subsection 46(2);
4
(xiv) subsection 47(2);
5
(xv) subsection 48(2);
6
(xvi) subsection 49(2);
7
(xvii) subsection 184(2);
8
(xviii) subsection 184(6);
9
(xix) subsection 217(2);
10
(xx) subsection 217(6);
11
(xxi) subsection 320(2);
12
(xxii) subsection 427A(2); and
13
(b) the officer knew that, or was reckless or negligent as to
14
whether, the contravention would occur; and
15
(c) the officer was in a position to influence the conduct of the
16
body corporate in relation to the contravention; and
17
(d) the officer failed to take all reasonable steps to prevent the
18
contravention.
19
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
20
Contravention involving intention to obtain commercial advantage
21
or economic consequences for Australia
22
(2) An executive officer of a body corporate commits an offence if:
23
(a) the body corporate commits an offence by contravening any
24
of the following provisions:
25
(i) subsection 31(2);
26
(ii) subsection 32(2);
27
(iii) subsection 35(2);
28
(iv) subsection 36(2);
29
(v) subsection 39(2);
30
(vi) subsection 40(2);
31
(vii) subsection 43(2);
32
(viii) subsection 44(2); and
33
Compliance and enforcement
Chapter 10
Liability of executive officers and adverse publicity orders
Part 10A
Section 364B
No. , 2019
Export Control Bill 2019
393
(b) the officer knew that, or was reckless or negligent as to
1
whether, the contravention would occur; and
2
(c) the officer was in a position to influence the conduct of the
3
body corporate in relation to the contravention; and
4
(d) the officer failed to take all reasonable steps to prevent the
5
contravention.
6
Penalty: Imprisonment for 10 years or 5,000 penalty units, or
7
both.
8
Contravention involving making false or misleading representation
9
about non-prescribed goods that are entered for export
10
(3) An executive officer of a body corporate commits an offence if:
11
(a) the body corporate commits an offence by contravening
12
subsection 50(2); and
13
(b) the officer knew that, or was reckless or negligent as to
14
whether, the contravention would occur; and
15
(c) the officer was in a position to influence the conduct of the
16
body corporate in relation to the contravention; and
17
(d) the officer failed to take all reasonable steps to prevent the
18
contravention.
19
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
20
Reasonable steps to prevent contravention
21
(4) For the purposes of paragraph (1)(d), (2)(d) or (3)(d), in
22
determining whether an executive officer of a body corporate
23
failed to take all reasonable steps to prevent a contravention, a
24
court may have regard to all relevant matters, including:
25
(a) what action (if any) the officer took directed towards
26
ensuring the following (to the extent that the action is
27
relevant to the contravention):
28
(i) that the body corporate arranges regular professional
29
assessments of the body corporate's compliance with
30
the provisions referred to in paragraphs (1)(a), (2)(a)
31
and (3)(a);
32
Chapter 10
Compliance and enforcement
Part 10A
Liability of executive officers and adverse publicity orders
Section 364C
394
Export Control Bill 2019
No. , 2019
(ii) that the body corporate implements any appropriate
1
recommendations arising from such an assessment;
2
(iii) that the body corporate's employees, agents and
3
contractors have a reasonable knowledge and
4
understanding of the requirements to comply with the
5
provisions referred to in paragraphs (1)(a), (2)(a) and
6
(3)(a) in so far as those requirements affect the
7
employees, agents or contractors concerned;
8
(iv) that the body corporate had in place adequate
9
procedures to prevent the contravention; and
10
(b) what action (if any) the officer took when the officer became
11
aware of the contravention.
12
(5) Subsection (4) does not limit subsection (1), (2) or (3).
13
364C Civil liability for executive officers of bodies corporate
14
Basic contravention
15
(1) An executive officer of a body corporate is liable to a civil penalty
16
if:
17
(a) the body corporate contravenes any of the following civil
18
penalty provisions:
19
(i) subsection 30(4);
20
(ii) subsection 33(4);
21
(iii) subsection 33(8);
22
(iv) subsection 34(4);
23
(v) subsection 37(4);
24
(vi) subsection 37(8);
25
(vii) subsection 38(4);
26
(viii) subsection 41(3);
27
(ix) subsection 41(6);
28
(x) subsection 42(4);
29
(xi) subsection 45(3);
30
(xii) subsection 45(6);
31
(xiii) subsection 46(5);
32
(xiv) subsection 47(5);
33
Compliance and enforcement
Chapter 10
Liability of executive officers and adverse publicity orders
Part 10A
Section 364C
No. , 2019
Export Control Bill 2019
395
(xv) subsection 48(4);
1
(xvi) subsection 49(4);
2
(xvii) subsection 184(4);
3
(xviii) subsection 184(8);
4
(xix) subsection 217(4);
5
(xx) subsection 217(8);
6
(xxi) subsection 320(4);
7
(xxii) subsection 427A(3); and
8
(b) the officer knew that, or was reckless or negligent as to
9
whether, the contravention would occur; and
10
(c) the officer was in a position to influence the conduct of the
11
body corporate in relation to the contravention; and
12
(d) the officer failed to take all reasonable steps to prevent the
13
contravention.
14
Civil penalty:
960 penalty units.
15
Contravention involving intention to obtain commercial advantage
16
or economic consequences for Australia
17
(2) An executive officer of a body corporate is liable to a civil penalty
18
if:
19
(a) the body corporate contravenes any of the following civil
20
penalty provisions:
21
(i) subsection 31(5);
22
(ii) subsection 32(5);
23
(iii) subsection 35(5);
24
(iv) subsection 36(5);
25
(v) subsection 39(5);
26
(vi) subsection 40(5);
27
(vii) subsection 43(5);
28
(viii) subsection 44(5); and
29
(b) the officer knew that, or was reckless or negligent as to
30
whether, the contravention would occur; and
31
(c) the officer was in a position to influence the conduct of the
32
body corporate in relation to the contravention; and
33
Chapter 10
Compliance and enforcement
Part 10A
Liability of executive officers and adverse publicity orders
Section 364C
396
Export Control Bill 2019
No. , 2019
(d) the officer failed to take all reasonable steps to prevent the
1
contravention.
2
Civil penalty:
10,000 penalty units.
3
Contravention involving making false or misleading representation
4
about non-prescribed goods that are entered for export
5
(3) An executive officer of a body corporate is liable to a civil penalty
6
if:
7
(a) the body corporate contravenes subsection 50(4); and
8
(b) the officer knew that, or was reckless or negligent as to
9
whether, the contravention would occur; and
10
(c) the officer was in a position to influence the conduct of the
11
body corporate in relation to the contravention; and
12
(d) the officer failed to take all reasonable steps to prevent the
13
contravention.
14
Civil penalty:
600 penalty units.
15
Recklessness
16
(4) For the purposes of subsection (1), (2) or (3), the executive officer
17
was reckless as to whether the contravention would occur if:
18
(a) the officer was aware of a substantial risk that the
19
contravention would occur; and
20
(b) having regard to the circumstances known to the officer, it
21
was unjustifiable to take the risk.
22
Negligence
23
(5) For the purposes of subsection (1), (2) or (3), the executive officer
24
was negligent as to whether the contravention would occur if the
25
officer's conduct involved:
26
(a) such a great falling short of the standard of care that a
27
reasonable person would exercise in the circumstances; and
28
(b) such a high risk that the contravention would occur;
29
that the conduct merits the imposition of a pecuniary penalty.
30
Compliance and enforcement
Chapter 10
Liability of executive officers and adverse publicity orders
Part 10A
Section 364D
No. , 2019
Export Control Bill 2019
397
Reasonable steps to prevent contravention
1
(6) For the purposes of paragraph (1)(d), (2)(d) or (3)(d), in
2
determining whether an executive officer of a body corporate
3
failed to take all reasonable steps to prevent a contravention, a
4
court may have regard to all relevant matters, including:
5
(a) what action (if any) the officer took directed towards
6
ensuring the following (to the extent that the action is
7
relevant to the contravention):
8
(i) that the body corporate arranges regular professional
9
assessments of the body corporate's compliance with
10
the civil penalty provisions referred to in
11
paragraphs (1)(a), (2)(a) and (3)(a);
12
(ii) that the body corporate implements any appropriate
13
recommendations arising from such an assessment;
14
(iii) that the body corporate's employees, agents and
15
contractors have a reasonable knowledge and
16
understanding of the requirements to comply with the
17
civil penalty provisions referred to in paragraphs (1)(a),
18
(2)(a) and (3)(a) in so far as those requirements affect
19
the employees, agents or contractors concerned;
20
(iv) that the body corporate had in place adequate
21
procedures to prevent the contravention; and
22
(b) what action (if any) the officer took when the officer became
23
aware of the contravention.
24
(7) Subsection (6) does not limit subsection (1), (2) or (3).
25
364D Civil penalty--indemnification of executive officers
26
(1) A body corporate (the
first body
), or a related body corporate
27
(within the meaning of the
Corporations Act 2001
) of the first
28
body, must not indemnify a person (whether by agreement or by
29
making a payment and whether directly or through an interposed
30
entity) against either of the following liabilities incurred by the
31
person as an executive officer of the first body:
32
(a) a liability to pay a penalty under section 364B or 364C;
33
Chapter 10
Compliance and enforcement
Part 10A
Liability of executive officers and adverse publicity orders
Section 364E
398
Export Control Bill 2019
No. , 2019
(b) legal costs incurred in defending or resisting proceedings
1
(including any related appeals) in which the person is found
2
to have such a liability.
3
Civil penalty provision
4
(2) A person is liable to a civil penalty if the person contravenes
5
subsection (1).
6
Civil penalty:
25 penalty units.
7
364E Certain indemnities not authorised and certain documents
8
void
9
(1) Section 364D does not authorise anything that would otherwise be
10
unlawful.
11
(2) Anything that purports to indemnify a person against a liability is
12
void to the extent that it contravenes section 364D.
13
364F Adverse publicity orders
14
(1) A relevant court may, on application by the Secretary, or on its
15
own initiative, make an adverse publicity order in relation to a
16
person who:
17
(a) has been ordered to pay a penalty for a contravention of a
18
provision of this Act; or
19
(b) has been found guilty of an offence against a provision of this
20
Act, whether or not the court convicts the person of the
21
offence.
22
(2) A relevant court may, on application by the Director of Public
23
Prosecutions, make an adverse publicity order in relation to a
24
person who has been found guilty of an offence against a provision
25
of this Act, whether or not the court convicts the person of the
26
offence.
27
(3) For the purposes of this section, an adverse publicity order in
28
relation to a person is an order that requires the person:
29
(a) to take either or both of the following actions within the
30
period specified in the order:
31
Compliance and enforcement
Chapter 10
Liability of executive officers and adverse publicity orders
Part 10A
Section 364F
No. , 2019
Export Control Bill 2019
399
(i) to disclose, in the way and to the persons specified in
1
the order, details of the relevant contravention or
2
offence, its consequences, the penalty imposed and any
3
other related matter;
4
(ii) to publish, at the person's expense and in the way
5
specified in the order, details of the relevant
6
contravention or offence, its consequences, the penalty
7
imposed and any other related matter; and
8
(b) to give the Secretary, within 14 days after the end of the
9
period specified in the order, evidence that the action or
10
actions were taken by the person in accordance with the
11
order.
12
(4) This section does not limit a court's powers under any other
13
provision of this Act.
14
Chapter 10
Compliance and enforcement
Part 11
Miscellaneous
Division 1
Introduction
Section 365
400
Export Control Bill 2019
No. , 2019
Part 11--Miscellaneous
1
Division 1--Introduction
2
365 Simplified outline of this Part
3
An authorised officer may be assisted by other persons in
4
exercising powers and performing functions or duties under Part 4,
5
5 or 6 if that assistance is necessary and reasonable.
6
A person who makes a false or misleading statement in an
7
application or provides false or misleading information or
8
documents is liable to a civil penalty.
9
If a provision provides that a person commits an offence, or is
10
liable to a civil penalty, for contravening another provision, special
11
rules apply for identifying elements of the offence and for
12
interpreting references to a contravention of the offence provision
13
or civil penalty provision.
14
For the purposes of certain decisions under this Act, the Secretary
15
must consider whether a person is a fit and proper person.
16
Division 5 sets out the matters to which the Secretary must have
17
regard in considering this.
18
Certain persons are required to notify the Secretary if they, or any
19
of their associates, are convicted of an offence against, or ordered
20
to pay a pecuniary penalty under, any Australian law for a
21
contravention involving fraud or dishonesty.
22
Compliance and enforcement
Chapter 10
Miscellaneous
Part 11
Persons assisting authorised officers
Division 2
Section 366
No. , 2019
Export Control Bill 2019
401
Division 2--Persons assisting authorised officers
1
366 Persons assisting authorised officers
2
Authorised officers may be assisted by other persons
3
(1) An authorised officer may be assisted by other persons in
4
exercising powers and performing functions or duties under Part 4,
5
5 or 6 if that assistance is necessary and reasonable. A person
6
giving such assistance is a
person assisting
the authorised officer.
7
Powers of a person assisting the authorised officer
8
(2) A person assisting the authorised officer:
9
(a) may enter premises, if it is necessary for the authorised
10
officer to enter those premises to exercise powers under
11
Part 4, 5 or 6; and
12
(b) may exercise powers under those Parts for the purposes of
13
assisting the authorised officer; and
14
(c) must enter premises and exercise powers in accordance with
15
any direction given to the person assisting by the authorised
16
officer.
17
Note 1:
Premises includes a conveyance (see paragraph (a) of the definition of
18
premises
in section 12).
19
Note 2:
A person assisting an authorised officer who has entered premises
20
under section 347 may use such force against things as is necessary
21
and reasonable in the circumstances (see section 349).
22
Note 3:
A direction given under paragraph (2)(c) in writing is not a legislative
23
instrument (see subsection 309(4)).
24
Powers exercised in assisting an authorised officer
25
(3) A power exercised by a person in assisting an authorised officer as
26
referred to in this section is taken for all purposes to have been
27
exercised by the authorised officer.
28
Chapter 10
Compliance and enforcement
Part 11
Miscellaneous
Division 3
Civil penalty provisions for false or misleading information or documents
Section 367
402
Export Control Bill 2019
No. , 2019
Division 3--Civil penalty provisions for false or misleading
1
information or documents
2
367 Civil penalty provision for false or misleading statements in
3
applications
4
(1) A person is liable to a civil penalty if:
5
(a) the person makes a statement (whether orally, in a document
6
or in any other way) in, or in connection with, an application
7
made under this Act; and
8
(b) the person does so knowing that the statement:
9
(i) is false or misleading; or
10
(ii) omits any matter or thing without which the statement is
11
misleading.
12
Civil penalty:
960 penalty units.
13
(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i)
14
if the statement is not false or misleading in a material particular.
15
Note:
A defendant bears an evidential burden in relation to the matter in this
16
subsection (see section 96 of the Regulatory Powers Act).
17
(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii)
18
if the statement did not omit any matter or thing without which the
19
statement is misleading in a material particular.
20
Note:
A defendant bears an evidential burden in relation to the matter in this
21
subsection (see section 96 of the Regulatory Powers Act).
22
368 Civil penalty provision for false or misleading information
23
(1) A person is liable to a civil penalty if:
24
(a) the person gives information in compliance or purported
25
compliance with this Act; and
26
(b) the person does so knowing that the information:
27
(i) is false or misleading; or
28
(ii) omits any matter or thing without which the information
29
is misleading.
30
Compliance and enforcement
Chapter 10
Miscellaneous
Part 11
Civil penalty provisions for false or misleading information or documents
Division 3
Section 369
No. , 2019
Export Control Bill 2019
403
Civil penalty:
960 penalty units.
1
(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i)
2
if the information is not false or misleading in a material particular.
3
Note:
A defendant bears an evidential burden in relation to the matter in this
4
subsection (see section 96 of the Regulatory Powers Act).
5
(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii)
6
if the information did not omit any matter or thing without which
7
the information is misleading in a material particular.
8
Note:
A defendant bears an evidential burden in relation to the matter in this
9
subsection (see section 96 of the Regulatory Powers Act).
10
(4) Subsection (1) does not apply if, before the information was given
11
by a person to another person (the
official
) in compliance or
12
purported compliance with this Act, the official did not take
13
reasonable steps to inform the person that the person may be liable
14
to a civil penalty for contravening subsection (1).
15
Note:
A defendant bears an evidential burden in relation to the matter in this
16
subsection (see section 96 of the Regulatory Powers Act).
17
(5) For the purposes of subsection (4), it is sufficient if the following
18
form of words is used:
19
"You may be liable to a civil penalty for giving false or misleading
20
information".
21
369 Civil penalty provision for false or misleading documents
22
(1) A person is liable to a civil penalty if:
23
(a) the person produces a document to another person; and
24
(b) the person does so knowing that the document is false or
25
misleading; and
26
(c) the document is produced in compliance or purported
27
compliance with this Act.
28
Civil penalty:
960 penalty units.
29
(2) Subsection (1) does not apply if the document is not false or
30
misleading in a material particular.
31
Chapter 10
Compliance and enforcement
Part 11
Miscellaneous
Division 3
Civil penalty provisions for false or misleading information or documents
Section 369
404
Export Control Bill 2019
No. , 2019
Note:
A defendant bears an evidential burden in relation to the matter in this
1
subsection (see section 96 of the Regulatory Powers Act).
2
(3) Subsection (1) does not apply to a person who produces a
3
document if the document is accompanied by a written statement
4
signed by the person or, in the case of a body corporate, by a
5
competent officer of the body corporate:
6
(a) stating that the document is, to the knowledge of the
7
first-mentioned person, false or misleading in a material
8
particular; and
9
(b) setting out, or referring to, the material particular in which
10
the document is, to the knowledge of the first-mentioned
11
person, false or misleading.
12
Note:
A defendant bears an evidential burden in relation to the matter in this
13
subsection (see section 96 of the Regulatory Powers Act).
14
Compliance and enforcement
Chapter 10
Miscellaneous
Part 11
General rules about offences and civil penalty provisions
Division 4
Section 370
No. , 2019
Export Control Bill 2019
405
Division 4--General rules about offences and civil penalty
1
provisions
2
370 Physical elements of offences
3
(1) This section applies if a provision of this Act provides that a person
4
contravening another provision of this Act (the
conduct rule
5
provision
) commits an offence.
6
(2) For the purposes of applying Chapter 2 of the
Criminal Code
to the
7
offence, the physical elements of the offence are set out in the
8
conduct rule provision.
9
Note:
Chapter 2 of the
Criminal Code
sets out general principles of criminal
10
responsibility.
11
371 Contravening an offence provision or a civil penalty provision
12
(1) This section applies if a provision of this Act provides that a person
13
contravening another provision of this Act (the
conduct provision
)
14
commits an offence or is liable to a civil penalty.
15
(2) For the purposes of this Act, and the Regulatory Powers Act to the
16
extent that it relates to this Act, a reference to a contravention of an
17
offence provision or a civil penalty provision includes a reference
18
to a contravention of the conduct provision.
19
Chapter 10
Compliance and enforcement
Part 11
Miscellaneous
Division 5
Fit and proper person test
Section 372
406
Export Control Bill 2019
No. , 2019
Division 5--Fit and proper person test
1
372 Fit and proper person test
2
(1) This section applies for the purposes of determining whether a
3
person is a fit and proper person for the purposes of any of the
4
following provisions:
5
(a) sections 112, 117, 123, 127 and 138 (decisions in relation to
6
registered establishments);
7
(b) sections 151, 156, 165, 171 and 179 (decisions in relation to
8
approved arrangements);
9
(c) sections 191, 196, 201, 205 and 212 (decisions in relation to
10
export licences);
11
(d) any other provision of this Act prescribed by the rules.
12
Note:
The reference to this Act includes a reference to instruments made
13
under this Act (see the definition of
this Act
in section 12).
14
(2) Subject to subsection (4), in determining whether the person is a fit
15
and proper person, the Secretary must have regard to the following
16
matters:
17
(a) whether the person, or an associate of the person, has been
18
convicted of an offence against, or ordered to pay a pecuniary
19
penalty under, any of the following:
20
(i) this Act or the repealed
Export Control Act 1982
;
21
(ii) the
Australian Meat and Live-stock Industry Act 1997
;
22
(iii) the
Biosecurity Act 2015
or the repealed
Quarantine Act
23
1908
;
24
(iv) the
Imported Food Control Act 1992
;
25
(v) the
Illegal Logging Prohibition Act 2012
;
26
(vi) another Act prescribed by the rules;
27
(vii) the
Criminal Code
or the
Crimes Act 1914
, to the extent
28
that it relates to an Act referred to in another
29
subparagraph of this paragraph;
30
(b) whether a debt is due and payable by the person, or an
31
associate of the person, to the Commonwealth under an Act
32
referred to in paragraph (a);
33
Compliance and enforcement
Chapter 10
Miscellaneous
Part 11
Fit and proper person test
Division 5
Section 372
No. , 2019
Export Control Bill 2019
407
(c) whether the person or an associate of the person:
1
(i) made a false or misleading statement in an application
2
under this Act; or
3
(ii) gave false or misleading information or documents to
4
the Secretary or to another person performing functions
5
or duties or exercising powers under this Act; or
6
(iii) gave false or misleading information or documents to
7
the Secretary or the Department under a prescribed
8
agriculture law;
9
(d) whether the person, or an associate of the person, has
10
contravened an Act referred to in paragraph (a);
11
(e) whether an application made by the person, or an associate of
12
the person, under any of the following was refused (except in
13
accordance with subsection 379(2)):
14
(i) section 78 or 83 (accreditation of properties);
15
(ii) section 111 or 116 (registration of establishments);
16
(iii) section 150 or 155 (approved arrangements);
17
(iv) section 190
or 195 (export licences);
18
(v) any other provision of this Act prescribed by the rules;
19
(vi) the
Australian Meat and Live-stock Industry Act 1997
;
20
(vii) the repealed
Export Control Act 1982
;
21
(f) if the person, or an associate of the person, is or was the
22
manager of an accredited property--whether the
23
accreditation of the property:
24
(i) is or was suspended, wholly or in part, under Division 2
25
of Part 5 of Chapter 3; or
26
(ii) was revoked under Division 2 of Part 6 of that Chapter;
27
(g) if the person, or an associate of the person, is or was the
28
occupier of a registered establishment--whether the
29
registration of the establishment:
30
(i) is or was suspended, wholly or in part, under Division 2
31
of Part 5 of Chapter 4; or
32
(ii) was revoked under Division 2 of Part 6 of that Chapter;
33
(h) if the person, or an associate of the person, is or was the
34
holder of an approved arrangement:
35
Chapter 10
Compliance and enforcement
Part 11
Miscellaneous
Division 5
Fit and proper person test
Section 372
408
Export Control Bill 2019
No. , 2019
(i) whether the approved arrangement, or a part of the
1
approved arrangement, is or was suspended under
2
Division 2 of Part 5 of Chapter 5; or
3
(ii) whether the approved arrangement was revoked under
4
Division 2 of Part 6 of that Chapter;
5
(i) whether an export licence granted to the person or an
6
associate of the person:
7
(i) is or was suspended, wholly or in part, under Division 2
8
of Part 5 of Chapter 6; or
9
(ii) was revoked under Division 2 of Part 6 of that Chapter;
10
(j) any other matter prescribed by the rules.
11
(3) In determining whether the person is a fit and proper person, the
12
Secretary may also have regard to the following matters:
13
(a) whether the person has been convicted of an offence against,
14
or ordered to pay a pecuniary penalty under, any Australian
15
law (other than an Act referred to in paragraph (2)(a));
16
(b) the interests of the industry, or industries, that relate to the
17
person's export business;
18
(c) any other relevant matter.
19
(4) For the purposes of determining whether a person who:
20
(a) carries out export operations, or performs functions or duties
21
or exercises powers under this Act; and
22
(b) is prescribed by the rules;
23
is a fit and proper person for the purposes of a provision of this
24
Act, subsection (2) of this section applies as if the references to an
25
associate of the person were omitted.
26
(5) Rules must not be made for the purposes of paragraph (4)(b)
27
prescribing any of the following:
28
(a) an applicant for the registration of an establishment under
29
section 111;
30
(b) the occupier of a registered establishment;
31
(c) a person who is required by rules made for the purposes of
32
section 373 to be a fit and proper person.
33
Compliance and enforcement
Chapter 10
Miscellaneous
Part 11
Fit and proper person test
Division 5
Section 373
No. , 2019
Export Control Bill 2019
409
(6) Paragraphs (2)(e) to (i) do not apply in relation to a refusal, or a
1
suspension or revocation, if the decision to refuse, suspend or
2
revoke was set aside on review.
3
(7) Nothing in this section affects the operation of Part VIIC of the
4
Crimes Act 1914
(which includes provisions that, in certain
5
circumstances, relieve persons from the requirement to disclose
6
spent convictions and require persons aware of such convictions to
7
disregard them).
8
373 Rules may prescribe kinds of persons that are required to be fit
9
and proper persons for the purposes of Chapter 5 or 6
10
(1) The rules may prescribe kinds of persons who are required, for the
11
purposes of Chapter 5 (approved arrangements) or Chapter 6
12
(export licences), to be fit and proper persons (having regard to the
13
matters referred to in section 372).
14
(2) Without limiting subsection (1), the rules may prescribe kinds of
15
persons by reference to a kind of export operations carried out, or
16
to be carried out, by persons of that kind in accordance with an
17
approved arrangement or under an export licence (as the case
18
requires).
19
374 Notification of conviction of offence or order to pay pecuniary
20
penalty
21
(1) This section applies to the following persons:
22
(a) an applicant for the accreditation of a property under
23
section 78;
24
(b) the manager of an accredited property;
25
(c) an applicant for the registration of an establishment under
26
section 111, and any other person who manages or controls,
27
or would manage or control, export operations carried out in
28
relation to prescribed goods at the establishment;
29
(d) the occupier of a registered establishment, and any other
30
person who manages or controls export operations carried out
31
in relation to prescribed goods at the establishment;
32
(e) subject to subsection (2), each of the following:
33
Chapter 10
Compliance and enforcement
Part 11
Miscellaneous
Division 5
Fit and proper person test
Section 374
410
Export Control Bill 2019
No. , 2019
(i) an applicant for approval of a proposed arrangement
1
under section 150, and any other person who is to
2
manage or control or carry out export operations
3
covered by the proposed arrangement;
4
(ii) the holder of an approved arrangement;
5
(iii) a person who manages or controls or carries out export
6
operations covered by an approved arrangement;
7
(f) subject to subsection (3), each of the following:
8
(i) an applicant for an export licence under section 190, and
9
a person who participates or would participate in the
10
management or control of the applicant's export
11
business or proposed export business (as provided by
12
section 220);
13
(ii) the holder of an export licence;
14
(iii) a person who participates or would participate in the
15
management or control of the applicant's export
16
business or proposed export business (as provided by
17
section 220);
18
(g) any other person who carries out export operations, or
19
performs functions or duties or exercises powers under this
20
Act, and is prescribed by the rules.
21
(2) This section applies to a person referred to in a subparagraph of
22
paragraph (1)(e) only if the person is a kind of person who is
23
required by rules made for the purposes of section 373 to be a fit
24
and proper person for the purposes of Chapter 5 (approved
25
arrangements).
26
(3) This section applies to a person referred to in a subparagraph of
27
paragraph (1)(f) only if the person is a kind of person who is
28
required by rules made for the purposes of section 373 to be a fit
29
and proper person for the purposes of Chapter 6 (export licences).
30
(4) If a person to whom this section applies is convicted of an offence
31
against, or ordered to pay a pecuniary penalty under, any
32
Australian law for a contravention involving fraud or dishonesty,
33
the person must notify the Secretary, in writing, of the conviction
34
or order as soon as practicable after the person is convicted or the
35
order is made.
36
Compliance and enforcement
Chapter 10
Miscellaneous
Part 11
Fit and proper person test
Division 5
Section 374
No. , 2019
Export Control Bill 2019
411
(5) If a person to whom this section applies becomes aware that an
1
associate of the person has been convicted of an offence against, or
2
ordered to pay a pecuniary penalty under, any Australian law for a
3
contravention involving fraud or dishonesty, the person must notify
4
the Secretary, in writing, of the conviction or order as soon as
5
practicable after the person becomes aware of the conviction or
6
order.
7
Civil penalty provision
8
(6) A person is liable to a civil penalty if:
9
(a) the person is required to notify the Secretary of a conviction
10
or order under subsection (4) or (5); and
11
(b) the person fails to comply with the requirement.
12
Civil penalty:
60 penalty units.
13
(7) Nothing in this section affects the operation of Part VIIC of the
14
Crimes Act 1914
(which includes provisions that, in certain
15
circumstances, relieve persons from the requirement to disclose
16
spent convictions and require persons aware of such convictions to
17
disregard them).
18
Chapter 11
Miscellaneous
Part 1
Matters relating to applications
Division 1
Introduction
Section 375
412
Export Control Bill 2019
No. , 2019
Chapter 11--Miscellaneous
1
Part 1--Matters relating to applications
2
Division 1--Introduction
3
375 Simplified outline of this Part
4
This Part sets out matters relating to applications under Chapter 3
5
(accredited properties), Chapter 4 (registered establishments),
6
Chapter 5 (approved arrangements) and Chapter 6 (export
7
licences).
8
An application must comply with certain requirements.
9
A person who has made an application must give the Secretary
10
additional or corrected information in certain circumstances.
11
The Secretary must make a decision in relation to an application
12
within the relevant consideration period and may exercise certain
13
powers in relation to the application.
14
Miscellaneous
Chapter 11
Matters relating to applications
Part 1
Matters relating to certain applications
Division 2
Section 376
No. , 2019
Export Control Bill 2019
413
Division 2--Matters relating to certain applications
1
376 Applications to which this Division applies
2
(1) This Division applies in relation to an application under any of the
3
following:
4
(a) Part 2 or 3 or Division 1 of Part 4 of Chapter 3 (accredited
5
properties);
6
(b) Part 2 or 3 or Division 1 of Part 4 of Chapter 4 (registered
7
establishments);
8
(c) Part 2 or 3 or Subdivision B of Division 1 of Part 4 of
9
Chapter 5 (approved arrangements);
10
(d) Part 2 or 3 or Division 1 of Part 4 of Chapter 6 (export
11
licences).
12
(2) Section 379 applies in relation to an application that is taken to
13
have been made under subsection 166(2) to approve a varied
14
approved arrangement.
15
377 Requirements for applications
16
(1) An application must:
17
(a) if the Secretary has approved, in writing, a manner for
18
making an application--be made in an approved manner; and
19
(b) if the Secretary has approved a form for making an
20
application:
21
(i) include the information required by the form; and
22
(ii) be accompanied by any documents required by the
23
form; and
24
(c) include the information (if any) prescribed by the rules; and
25
(d) be accompanied by any documents prescribed by the rules.
26
Note:
A person may commit an offence or be liable to a civil penalty if the
27
person makes a false or misleading statement in an application or
28
provides false or misleading information or documents (see
29
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
30
sections 367, 368 and 369 of this Act).
31
Chapter 11
Miscellaneous
Part 1
Matters relating to applications
Division 2
Matters relating to certain applications
Section 378
414
Export Control Bill 2019
No. , 2019
(2) If the application is to approve a proposed arrangement, to renew
1
an approved arrangement or to approve a proposed varied
2
arrangement under Chapter 5, the proposed arrangement, approved
3
arrangement or proposed varied arrangement must:
4
(a) accompany the application; or
5
(b) otherwise be made available to the Secretary for evaluation.
6
(3) The Secretary may accept any information or document previously
7
given to the Secretary in connection with an application made
8
under this Act, or a notice of intention to export a consignment of
9
prescribed goods given under this Act, as satisfying any
10
requirement to give that information or document under
11
subsection (1).
12
(4) An application is taken not to have been made if the application
13
does not comply with the requirements referred to in subsection (1)
14
or (2) for the application.
15
(5) To avoid doubt, the Secretary may approve:
16
(a) different forms for applications relating to different kinds of
17
establishments, properties, export operations or prescribed
18
goods; or
19
(b) a single form for more than one kind of application.
20
378 Additional or corrected information
21
(1) A person who has made an application to which this Division
22
applies must comply with subsection (2) if:
23
(a) the person becomes aware that information included in the
24
application, or information or a document given to the
25
Secretary in relation to the application, was incomplete or
26
incorrect; or
27
(b) a change prescribed by the rules occurs.
28
(2) The person must, as soon as practicable, give the Secretary
29
additional or corrected information, to the extent that it is relevant
30
to the Secretary's consideration of the application.
31
Note 1:
A person may commit an offence or be liable to a civil penalty if the
32
person makes a false or misleading statement in an application or
33
provides false or misleading information or documents (see
34
Miscellaneous
Chapter 11
Matters relating to applications
Part 1
Matters relating to certain applications
Division 2
Section 379
No. , 2019
Export Control Bill 2019
415
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
1
sections 367, 368 and 369 of this Act).
2
Note 2:
This section is not subject to the privilege against self-incrimination
3
(see section 426).
4
Civil penalty provision
5
(3) A person is liable to a civil penalty if:
6
(a) the person is required to give information to the Secretary
7
under subsection (2); and
8
(b) the person fails to comply with the requirement.
9
Civil penalty:
60 penalty units.
10
379 Dealing with applications
11
Period within which decision must be made
12
(1) The Secretary must make a decision in relation to an application to
13
which this Division applies (the
relevant application
) within the
14
consideration period for the application if:
15
(a) the application complies with the requirements referred to in
16
subsections 377(1) and (2) for the application; and
17
(b) the application has not been withdrawn.
18
Note:
An application that does not comply with the requirements referred to
19
in subsection 377(1) or (2) for the application is taken not to have
20
been made (see subsection 377(4)).
21
(2) If the Secretary does not make a decision in relation to the relevant
22
application within the consideration period for the application, the
23
Secretary is taken to have refused the application at the end of that
24
period.
25
Consideration period--general
26
(3) The
consideration period
for the relevant application is the period
27
(the
initial consideration period
) prescribed by the rules for an
28
application of that kind, as extended under subsection (5), (6), (7)
29
or (8).
30
Chapter 11
Miscellaneous
Part 1
Matters relating to applications
Division 2
Matters relating to certain applications
Section 379
416
Export Control Bill 2019
No. , 2019
(4) The consideration period for the relevant application starts on the
1
day after the day the Secretary receives the application.
2
(5) The initial consideration period for the relevant application is
3
extended:
4
(a) for each request made under paragraph (9)(a), (b), (c) or
5
(e)--by the number of days in the period starting on the day
6
the request was made and ending on:
7
(i) the day the request was complied with; or
8
(ii) if the request was not complied with within the period
9
specified in the request--the last day of that period; and
10
(b) for each thing referred to in paragraph (9)(b) that is done--by
11
the number of days in the period during which the thing was
12
done; and
13
(c) for each test or analysis of samples taken under
14
subparagraph (9)(b)(iv)--by the number of days in the period
15
during which the testing or analysis was carried out; and
16
(d) for each thing done under paragraph (9)(f)--by the number
17
of days in the period during which the thing was done; and
18
(e) for any other reason prescribed by the rules--by the number
19
of days in the period prescribed by the rules in relation to that
20
reason.
21
Consideration period--related applications
22
(6) If:
23
(a) the Secretary receives:
24
(i) an application under section 111 to register an
25
establishment for a kind of export operations in relation
26
to a kind of prescribed goods; and
27
(ii) an application under section 150 to approve a proposed
28
arrangement for the same kind of export operations in
29
relation to the same kind of prescribed goods; and
30
(b) either:
31
(i) the applications are received at the same time (whether
32
or not they are made using a single approved form); or
33
Miscellaneous
Chapter 11
Matters relating to applications
Part 1
Matters relating to certain applications
Division 2
Section 379
No. , 2019
Export Control Bill 2019
417
(ii) the applications are not received at the same time but
1
the second application is received before the end of the
2
consideration period for the first application;
3
then, if the initial consideration period for either of the applications
4
is extended for a period under subsection (5), the initial
5
consideration period for the other application is also extended for
6
that period.
7
(7) If:
8
(a) the Secretary receives:
9
(i) an application under section 116 to renew the
10
registration of an establishment for a kind of export
11
operations in relation to a kind of prescribed goods; and
12
(ii) an application under section 155 to renew an approved
13
arrangement covering the same kind of export
14
operations in relation to the same kind of prescribed
15
goods; and
16
(b) either:
17
(i) the applications are received at the same time (whether
18
or not they are made using a single approved form); or
19
(ii) the applications are not received at the same time but
20
the second application is received before the end of the
21
consideration period for the first application;
22
then, if the initial consideration period for either of the applications
23
is extended for a period under subsection (5), the initial
24
consideration period for the other application is also extended for
25
that period.
26
(8) If:
27
(a) the Secretary receives:
28
(i) an application under section 120 to make a variation in
29
relation to the registration of an establishment or
30
approve an alteration of an establishment; and
31
(ii) an application under section 161 to approve a variation
32
of an approved arrangement, or the conditions of an
33
approved arrangement, covering export operations
34
carried out at the establishment to which the application
35
referred to in subparagraph (i) applies; and
36
Chapter 11
Miscellaneous
Part 1
Matters relating to applications
Division 2
Matters relating to certain applications
Section 379
418
Export Control Bill 2019
No. , 2019
(b) either:
1
(i) the applications are received at the same time (whether
2
or not they are made using a single approved form); or
3
(ii) the applications are not received at the same time but
4
the second application is received before the end of the
5
consideration period for the first application;
6
then, if the initial consideration period for either of the applications
7
is extended for a period under subsection (5), the initial
8
consideration period for the other application is also extended for
9
that period.
10
Powers of Secretary
11
(9) The Secretary may do any of the following in relation to the
12
relevant application:
13
(a) request the applicant, or another person who the Secretary
14
considers may have information or documents relevant to the
15
application or the applicant, to give the Secretary further
16
specified information or documents relevant to the
17
application or the applicant;
18
(b) request consent to enter premises of the applicant or of
19
another person to do any of the following things:
20
(i) assess the suitability of the premises and equipment and
21
facilities on the premises for carrying out the export
22
operations to which the application relates;
23
(ii) inspect, examine or evaluate export operations or other
24
operations carried out on the premises;
25
(iii) view a demonstration of export operations or other
26
operations carried out on the premises;
27
(iv) take samples of goods, or from equipment used in
28
export operations or other operations, on the premises;
29
(v) take photographs of goods, or of equipment used in
30
export operations or other operations, on the premises;
31
(c) request consent to allow a person with appropriate
32
qualifications or expertise to assist the Secretary in doing a
33
thing under paragraph (b);
34
(d) test or analyse any samples taken under subparagraph (b)(iv);
35
Miscellaneous
Chapter 11
Matters relating to applications
Part 1
Matters relating to certain applications
Division 2
Section 379
No. , 2019
Export Control Bill 2019
419
(e) request another person with appropriate qualifications or
1
expertise to test or analyse any samples taken under
2
subparagraph (b)(iv);
3
(f) any other thing prescribed by the rules.
4
Note:
See Division 2 of Part 6 of this Chapter in relation to taking, testing
5
and analysing samples.
6
(10) A request under subsection (9) must:
7
(a) be in writing; and
8
(b) specify the period (which must not be longer than the period
9
prescribed by the rules) within which the request must be
10
complied with.
11
Chapter 11
Miscellaneous
Part 1A
Alternative regulatory arrangements
Division 1
Introduction
Section 379A
420
Export Control Bill 2019
No. , 2019
Part 1A--Alternative regulatory arrangements
1
Division 1--Introduction
2
379A Simplified outline of this Part
3
The Secretary may, on application by a person, approve an
4
alternative regulatory arrangement in relation to a kind of export
5
operations and a kind of prescribed goods.
6
A variation of an approved arrangement may be needed to
7
implement an approved alternative regulatory arrangement in
8
relation to a kind of export operations and a kind of prescribed
9
goods.
10
Miscellaneous
Chapter 11
Alternative regulatory arrangements
Part 1A
Alternative regulatory arrangements
Division 2
Section 379B
No. , 2019
Export Control Bill 2019
421
Division 2--Alternative regulatory arrangements
1
379B Application to approve alternative regulatory arrangement
2
(1) A person may apply to the Secretary to approve a procedure,
3
standard or other requirement (an
alternative regulatory
4
arrangement
) in relation to a kind of export operations and a kind
5
of prescribed goods if:
6
(a) the alternative regulatory arrangement is different from a
7
requirement of this Act, or an industry standard or practice,
8
that applies in relation to that kind of export operations and
9
that kind of prescribed goods; and
10
(b) carrying out that kind of export operations in relation to that
11
kind of prescribed goods in accordance with the alternative
12
regulatory arrangement will:
13
(i) achieve the same purpose as the requirement of this Act
,
14
or the industry standard or practice, referred to in
15
paragraph (a); and
16
(ii) ensure the integrity of that kind of goods; and
17
(iii) ensure that importing country requirements relating to
18
that kind of export operations and that kind of goods
19
will be met.
20
Note:
The reference to this Act includes a reference to instruments made
21
under this Act (see the definition of
this Act
in section 12).
22
(2) An application must:
23
(a) if the Secretary has approved, in writing, a manner for
24
making an application--be made in an approved manner; and
25
(b) if the Secretary has approved a form for making an
26
application:
27
(i) include the information required by the form; and
28
(ii) be accompanied by any documents required by the
29
form; and
30
(c) include the information (if any) prescribed by the rules; and
31
(d) be accompanied by any documents prescribed by the rules.
32
Note:
A person may commit an offence or be liable to a civil penalty if the
33
person makes a false or misleading statement in an application or
34
Chapter 11
Miscellaneous
Part 1A
Alternative regulatory arrangements
Division 2
Alternative regulatory arrangements
Section 379C
422
Export Control Bill 2019
No. , 2019
provides false or misleading information or documents (see
1
sections 136.1, 137.1 and 137.2 of the
Criminal Code
and
2
sections 367, 368 and 369 of this Act).
3
(3) An application is taken not to have been made if the application
4
does not comply with the requirements referred to in
5
subsection (2).
6
379C Secretary must decide whether to approve alternative
7
regulatory arrangement
8
(1) On receiving an application made under subsection 379B(1) to
9
approve an alternative regulatory arrangement in relation to a kind
10
of export operations and a kind of prescribed goods, the Secretary
11
must decide:
12
(a) to approve the alternative regulatory arrangement; or
13
(b) to refuse to approve the alternative regulatory arrangement.
14
Note:
An application that does not comply with the requirements referred to
15
in subsection 379B(2) for the application is taken not to have been
16
made (see subsection 379B(3)).
17
(2) The Secretary may approve the alternative regulatory arrangement
18
in relation to the kind of export operations and the kind of
19
prescribed goods if the Secretary is satisfied, having regard to any
20
matter that the Secretary considers relevant, that:
21
(a) carrying out that kind of export operations in relation to that
22
kind of prescribed goods in accordance with the alternative
23
regulatory arrangement will:
24
(i) achieve the same purpose as a requirement of this Act,
25
or an industry standard or practice, that applies in
26
relation to that kind of export operations and that kind
27
of goods; and
28
(ii) ensure the integrity of that kind of goods; and
29
(iii) ensure that importing country requirements relating to
30
that kind of export operations and that kind of goods
31
will be met; and
32
(b) any other requirement prescribed by the rules is met.
33
Note:
A variation of an approved arrangement may be needed to implement
34
an alternative regulatory arrangement that has been approved under
35
Miscellaneous
Chapter 11
Alternative regulatory arrangements
Part 1A
Alternative regulatory arrangements
Division 2
Section 379C
No. , 2019
Export Control Bill 2019
423
paragraph (1)(a). See Subdivision B of Division 1 of Part 4 of
1
Chapter 5.
2
Notice of decision
3
(3) The Secretary must notify the applicant, in writing, of the
4
Secretary's decision. If the decision is a refusal, the notice must
5
include the reasons for the decision.
6
Chapter 11
Miscellaneous
Part 2
Review of decisions
Division 1
Introduction
Section 380
424
Export Control Bill 2019
No. , 2019
Part 2--Review of decisions
1
Division 1--Introduction
2
380 Simplified outline of this Part
3
Certain decisions under this Act may be reviewed internally and by
4
the Administrative Appeals Tribunal.
5
Miscellaneous
Chapter 11
Review of decisions
Part 2
Review of decisions
Division 2
Section 381
No. , 2019
Export Control Bill 2019
425
Division 2--Review of decisions
1
381 Reviewable decisions
2
(1) Each of the decisions referred to in column 1 of the following table
3
is a
reviewable decision
:
4
5
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
1
To refuse to accredit a
property for any of the
following:
(a) a kind of export
operations;
(b) a kind of prescribed
goods;
(c) a specified place to
which goods may
be exported
Paragraph 79(1)(b)
The manager of the
property
2
To set an expiry date
for the accreditation of
a property
Subsection 79(4)
The manager of the
property
3
To accredit a property
subject to additional
conditions
Paragraph 80(1)(c)
The manager of the
property
4
To refuse to renew the
accreditation of a
property
Paragraph 84(1)(b)
The manager of the
property
5
To set an expiry date
for the renewed
accreditation of a
property
Subsection 84(3)
The manager of the
property
6
To renew the
accreditation of a
Paragraph 85(c)
The manager of the
property
Chapter 11
Miscellaneous
Part 2
Review of decisions
Division 2
Review of decisions
Section 381
426
Export Control Bill 2019
No. , 2019
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
property subject to
additional conditions
7
To refuse to make a
variation or give an
approval in relation to
the accreditation of a
property
Paragraph 87(2)(b)
The manager of the
property
8
To vary an aspect of
the accreditation of a
property
Paragraph 90(1)(a)
The manager of the
property
9
To vary the conditions
of the accreditation of a
property
Paragraph 90(1)(b)
The manager of the
property
10
To set an expiry date
for the accreditation of
a property
Paragraph 90(1)(c)
The manager of the
property
11
To set an earlier expiry
date for the
accreditation of a
property
Paragraph 90(1)(d)
The manager of the
property
12
To suspend the
accreditation of a
property wholly or in
part
Subsection 94(1)
The manager of the
property
13
To suspend the
accreditation of a
property due to an
overdue relevant
Commonwealth
liability
Subsection 95(1)
The manager of the
property
14
To extend the period of
a suspension of the
accreditation of a
Subsection 97(2)
The manager of the
property
Miscellaneous
Chapter 11
Review of decisions
Part 2
Review of decisions
Division 2
Section 381
No. , 2019
Export Control Bill 2019
427
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
property
15
To revoke the
accreditation of a
property
Subsection 102(1)
The manager of the
property
16
To revoke the
accreditation of a
property due to an
overdue relevant
Commonwealth
liability
Subsection 103(1)
The manager of the
property
17
To refuse to register an
establishment for any
of the following:
(a) a kind of export
operations;
(b) a kind of prescribed
goods;
(c) a specified place to
which goods may
be exported
Paragraph 112(1)(b)
The occupier of the
establishment
18
To set an expiry date
for the registration of
an establishment
Subsection 112(3)
The occupier of the
establishment
19
To register an
establishment subject
to additional conditions
Paragraph 113(1)(c)
The occupier of the
establishment
20
To refuse to renew the
registration of an
establishment
Paragraph 117(1)(b)
The occupier of the
establishment
21
To set an expiry date
for the renewed
registration of an
establishment
Subsection 117(3)
The occupier of the
establishment
Chapter 11
Miscellaneous
Part 2
Review of decisions
Division 2
Review of decisions
Section 381
428
Export Control Bill 2019
No. , 2019
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
22
To renew the
registration of an
establishment subject
to additional conditions
Paragraph 118(c)
The occupier of the
establishment
23
To refuse to make a
variation or approve an
alteration in relation to
the registration of an
establishment
Paragraph 120(2)(b)
The occupier of the
establishment
24
To vary an aspect of
the registration of an
establishment
Paragraph 123(1)(a)
The occupier of the
establishment
25
To vary the conditions
of the registration of an
establishment
Paragraph 123(1)(b)
The occupier of the
establishment
26
To set an expiry date
for the registration of
an establishment
Paragraph 123(1)(c)
The occupier of the
establishment
27
To set an earlier expiry
date for the registration
of an establishment
Paragraph 123(1)(d)
The occupier of the
establishment
28
To suspend the
registration of an
establishment wholly
or in part
Subsection 127(1)
The occupier of the
establishment
29
To suspend the
registration of an
establishment due to an
overdue relevant
Commonwealth
liability
Subsection 128(1)
The occupier of the
establishment
30
To extend the period of
a suspension of the
Subsection 130(2)
The occupier of the
establishment
Miscellaneous
Chapter 11
Review of decisions
Part 2
Review of decisions
Division 2
Section 381
No. , 2019
Export Control Bill 2019
429
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
registration of an
establishment
31
To revoke the
registration of an
establishment
Subsection 138(1)
The occupier of the
establishment
32
To revoke the
registration of an
establishment due to an
overdue relevant
Commonwealth
liability
Subsection 139(1)
The occupier of the
establishment
33
To refuse to approve a
proposed arrangement
Paragraph 151(1)(b)
The person who
applied for the
approval
34
To set an expiry date
for an approved
arrangement
Subsection 151(3)
The person who
applied for the
approval
35
To approve a proposed
arrangement subject to
additional conditions
Paragraph 152(1)(c)
The person who
applied for the
approval
36
To refuse to renew an
approved arrangement
Paragraph 156(1)(b)
The holder of the
approved arrangement
37
To set an expiry date
for a renewed approved
arrangement
Subsection 156(3)
The holder of the
approved arrangement
38
To renew an approved
arrangement subject to
additional conditions
Paragraph 157(1)(c)
The holder of the
approved arrangement
39
To refuse to approve a
variation of an
approved arrangement
or to vary conditions of
an approved
Paragraph 161(2)(b)
The holder of the
approved arrangement
Chapter 11
Miscellaneous
Part 2
Review of decisions
Division 2
Review of decisions
Section 381
430
Export Control Bill 2019
No. , 2019
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
arrangement
40
To require an aspect of
an approved
arrangement to be
varied
Paragraph 165(1)(a)
The holder of the
approved arrangement
41
To vary the conditions
of an approved
arrangement
Paragraph 165(1)(b)
The holder of the
approved arrangement
42
To set an expiry date
for an approved
arrangement
Paragraph 165(1)(c)
The holder of the
approved arrangement
43
To set an earlier expiry
date for an approved
arrangement
Paragraph 165(1)(d)
The holder of the
approved arrangement
44
To refuse to approve a
varied approved
arrangement
Paragraph 166(3)(b)
The holder of the
approved arrangement
45
To approve a varied
approved arrangement
subject to conditions
Subsection 166(5)
The holder of the
approved arrangement
46
To suspend an
approved arrangement
or a part of an
approved arrangement
Subsection 171(1)
The holder of the
approved arrangement
47
To suspend an
approved arrangement
due to an overdue
relevant
Commonwealth
liability
Subsection 172(1)
The holder of the
approved arrangement
48
To extend the period of
a suspension of an
approved arrangement
Subsection 174(2)
The holder of the
approved arrangement
Miscellaneous
Chapter 11
Review of decisions
Part 2
Review of decisions
Division 2
Section 381
No. , 2019
Export Control Bill 2019
431
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
or a part of an
approved arrangement
49
To revoke an approved
arrangement
Subsection 179(1)
The holder of the
approved arrangement
50
To revoke an approved
arrangement due to an
overdue relevant
Commonwealth
liability
Subsection 180(1)
The holder of the
approved arrangement
51
To refuse to grant an
export licence in
relation to any of the
following:
(a) a kind of export
operations;
(b) a kind of prescribed
goods;
(c) a specified place to
which goods may
be exported
Paragraph 191(1)(b)
The person who
applied for the export
licence
52
To set an expiry date
for an export licence
Subsection 191(3)
The person who
applied for the export
licence
53
To grant an export
licence subject to
additional conditions
Paragraph 192(1)(c)
The person who
applied for the export
licence
54
To refuse to renew an
export licence
Paragraph 196(1)(b)
The holder of the
export licence
55
To set an expiry date
for a renewed export
licence
Subsection 196(3)
The holder of the
export licence
56
To renew an export
licence subject to
Paragraph 197(1)(c)
The holder of the
export licence
Chapter 11
Miscellaneous
Part 2
Review of decisions
Division 2
Review of decisions
Section 381
432
Export Control Bill 2019
No. , 2019
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
additional conditions
57
To refuse to make a
variation in relation to
an export licence
Paragraph 199(2)(b)
The holder of the
export licence
58
To vary an aspect of an
export licence
Paragraph 201(1)(a)
The holder of the
export licence
59
To vary the conditions
of an export licence
Paragraph 201(1)(b)
The holder of the
export licence
60
To set an expiry date
for an export licence
Paragraph 201(1)(c)
The holder of the
export licence
61
To set an earlier expiry
date for an export
licence
Paragraph 201(1)(d)
The holder of the
export licence
62
To suspend an export
licence wholly or in
part
Subsection 205(1)
The holder of the
export licence
63
To suspend an export
licence due to an
overdue relevant
Commonwealth
liability
Subsection 206(1)
The holder of the
export licence
64
To extend the period of
a suspension of an
export licence
Subsection 208(2)
The holder of the
export licence
65
To revoke an export
licence
Subsection 212(1)
The holder of the
export licence
66
To revoke an export
licence due to an
overdue relevant
Commonwealth
liability
Subsection 213(1)
The holder of the
export licence
67
To refuse to authorise a
person to be a third
Paragraph 291(6)(b)
The person to whom
the decision relates
Miscellaneous
Chapter 11
Review of decisions
Part 2
Review of decisions
Division 2
Section 381
No. , 2019
Export Control Bill 2019
433
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
party authorised officer
68
To authorise a person
to be a third party
authorised officer
subject to additional
conditions
Paragraph 292(1)(b)
The third party
authorised officer
69
To vary the functions
or powers that a third
party authorised officer
may perform or
exercise
Paragraph 295(1)(a)
The third party
authorised officer
70
To vary the conditions
to which the
authorisation of a
person as a third party
authorised officer is
subject
Paragraph 295(1)(b)
The third party
authorised officer
71
To shorten the period
of effect of the
authorisation of a
person as a third party
authorised officer
Paragraph 295(1)(c)
The third party
authorised officer
72
To specify a period of
effect of the
authorisation of a
person as a third party
authorised officer
Paragraph 295(1)(d)
The third party
authorised officer
73
To suspend the
authorisation of a
person as a third party
authorised officer
Subsection 296(1)
The third party
authorised officer
74
To extend the period of
a suspension of the
authorisation of a
Subsection 296(4)
The third party
authorised officer
Chapter 11
Miscellaneous
Part 2
Review of decisions
Division 2
Review of decisions
Section 382
434
Export Control Bill 2019
No. , 2019
Reviewable decisions
Item
Column 1
Reviewable decision
Column 2
Provision under
which the reviewable
decision is made
Column 3
Relevant person for
the reviewable
decision
person as a third party
authorised officer
75
To revoke the
authorisation of a
person as a third party
authorised officer
Subsection 297(1)
The third party
authorised officer
76
To refuse to make a
variation in relation to
a person's
authorisation as a third
party authorised officer
Paragraph 298A(4)(b)
The third party
authorised officer
(2) The rules may also:
1
(a) provide that a decision made under a specified provision of
2
this Act is a
reviewable decision
; and
3
(b) specify the relevant person for the reviewable decision.
4
Note:
The reference to this Act includes a reference to instruments made
5
under this Act (see the definition of
this Act
in section 12).
6
382 Notice of decision
7
(1) After a reviewable decision is made, the person who made the
8
decision must give a written notice to the relevant person for the
9
decision stating the following:
10
(a) the terms of the decision;
11
(b) the reasons for the decision;
12
(c) information about the person's right to have the decision
13
reviewed.
14
However, a failure to give the notice required by this section does
15
not affect the validity of the decision.
16
(2) This section does not affect any requirement to give notice of a
17
reviewable decision under another provision of this Act.
18
Miscellaneous
Chapter 11
Review of decisions
Part 2
Review of decisions
Division 2
Section 383
No. , 2019
Export Control Bill 2019
435
383 Internal review of reviewable decisions
1
Application for review
2
(1) A relevant person for a reviewable decision may apply to the
3
Secretary for review of the decision, unless the decision was made
4
by the Secretary personally.
5
Note:
See section 385 for review of a decision made personally.
6
(2) An application for review must:
7
(a) be in writing; and
8
(b) set out the reasons for the application; and
9
(c) be made within:
10
(i) 30 days after the day the reviewable decision first came
11
to the notice of the applicant; or
12
(ii) if the Secretary allows a longer period (whether before
13
or after the end of the 30-day period referred to in
14
subparagraph (i))--that longer period.
15
Note:
Under section 384, the Secretary may require further information in
16
relation to an application.
17
Review of decision
18
(3) On receiving an application, the Secretary must either:
19
(a) review the reviewable decision personally; or
20
(b) cause the reviewable decision to be reviewed by a person (the
21
internal reviewer
) who:
22
(i) is a person to whom the Secretary's power to review the
23
decision has been delegated; and
24
(ii) was not involved in making the decision; and
25
(iii) occupies a position senior to the person who actually
26
made the decision.
27
(4) The Secretary or the internal reviewer may:
28
(a) affirm, vary or set aside the reviewable decision; and
29
(b) if the Secretary or the internal reviewer sets aside the
30
reviewable decision--make such other decision as the
31
Secretary or the internal reviewer thinks appropriate.
32
Chapter 11
Miscellaneous
Part 2
Review of decisions
Division 2
Review of decisions
Section 384
436
Export Control Bill 2019
No. , 2019
Note:
The rules may prescribe modifications of this subsection in its
1
application in relation to reviewable decisions relating to tariff rate
2
quota entitlements (see section 386).
3
(5) The decision (the
decision on review
) of the Secretary or the
4
internal reviewer takes effect:
5
(a) on the day specified in the decision on review; or
6
(b) if a day is not specified--on the day the decision on review
7
was made.
8
Notice of decision
9
(6) After the Secretary or the internal reviewer makes a decision under
10
this section, the Secretary or the internal reviewer must give the
11
applicant a written notice stating the following:
12
(a) the terms of the decision;
13
(b) the reasons for the decision;
14
(c) information about the applicant's right to have the decision
15
reviewed by the Administrative Appeals Tribunal.
16
However, a failure to comply with this subsection does not affect
17
the validity of the decision.
18
Failure to give notice
19
(7) For the purposes of section 385 (review by the Administrative
20
Appeals Tribunal), the Secretary is taken to have affirmed a
21
reviewable decision if the applicant does not receive notice of the
22
decision on review (if any) within 90 days after the application for
23
review was made.
24
384 Secretary may require further information from applicants
25
(1) The Secretary may, by written notice, require a person who has
26
made an application under section 383 to give the Secretary further
27
information about the application.
28
(2) The Secretary may refuse to consider the application until the
29
person gives the Secretary the information.
30
Miscellaneous
Chapter 11
Review of decisions
Part 2
Review of decisions
Division 2
Section 385
No. , 2019
Export Control Bill 2019
437
385 Review by the Administrative Appeals Tribunal
1
(1) Applications may be made to the Administrative Appeals Tribunal
2
for review of:
3
(a) a reviewable decision made by the Secretary personally; or
4
(b) a decision of the Secretary, or an internal reviewer, under
5
section 383 that relates to a reviewable decision.
6
(2) An application under subsection (1) may be made only by, or on
7
behalf of, the relevant person for the reviewable decision referred
8
to in paragraph (1)(a) or (b).
9
(3) Subsection (2) has effect despite subsection 27(1) of the
10
Administrative Appeals Tribunal Act 1975
.
11
Note:
The rules may prescribe modifications of subsection 43(1) of the
12
Administrative Appeals Tribunal Act 1975
in its application in relation
13
to reviews of decisions relating to tariff rate quota entitlements (see
14
section 386).
15
386 Review of decisions relating to tariff rate quota entitlements
16
(1) The rules may prescribe modifications of subsection 383(4) in its
17
application in relation to reviewable decisions relating to tariff rate
18
quota entitlements.
19
Note:
See Part 4 of Chapter 8 in relation to tariff rate quota entitlements.
20
(2) If the rules prescribe modifications of subsection 383(4) in its
21
application in relation to reviewable decisions relating to tariff rate
22
quota entitlements, then that subsection has effect as so modified in
23
relation to reviewable decisions of that kind.
24
(3) The rules may prescribe modifications of subsection 43(1) of the
25
Administrative Appeals Tribunal Act 1975
in its application in
26
relation to reviews of decisions relating to tariff rate quota
27
entitlements.
28
Note:
If the rules prescribe modifications of subsection 43(1) of the
29
Administrative Appeals Tribunal Act 1975
, then that subsection has
30
effect in relation to applications for review referred to in
31
subsection 385(1) of this Act subject to those modifications (see
32
subsection 25(6) of the
Administrative Appeals Tribunal Act 1975
).
33
Chapter 11
Miscellaneous
Part 2
Review of decisions
Division 2
Review of decisions
Section 386
438
Export Control Bill 2019
No. , 2019
(4) The rules may prescribe modifications for the purposes of
1
subsection (1) or (3) only for the purpose of ensuring that tariff rate
2
quota amounts are not exceeded.
3
Miscellaneous
Chapter 11
Confidentiality of information
Part 3
Introduction
Division 1
Section 387
No. , 2019
Export Control Bill 2019
439
Part 3--Confidentiality of information
1
Division 1--Introduction
2
387 Simplified outline of this Part
3
Information (called protected information) may be obtained under,
4
or in accordance with, this Act. Protected information may be used
5
or disclosed in certain circumstances.
6
A person who obtains protected information in the course of, or for
7
the purposes of, performing functions or duties or exercising
8
powers under this Act may commit an offence if the person uses or
9
discloses the information other than in certain circumstances.
10
Chapter 11
Miscellaneous
Part 3
Confidentiality of information
Division 2
Authorised uses and disclosures
Section 388
440
Export Control Bill 2019
No. , 2019
Division 2--Authorised uses and disclosures
1
388 Authorisation to use or disclose protected information in
2
performing functions or exercising powers under this Act
3
A person who obtains protected information may use or disclose
4
the information in performing functions or duties or exercising
5
powers under this Act.
6
Note 1:
This section constitutes an authorisation for the purposes of the
7
Privacy Act 1988
and other laws (including the common law).
8
Note 2:
Use, in relation to information, includes make a record of (see the
9
definition of
use
in section 12).
10
389 Authorisation to use or disclose certain protected information
11
for secondary permissible purposes
12
(1)
A person who obtains protected information (other than protected
13
information in relation to which section 391 applies) in the course
14
of, or for the purposes of, performing functions or duties or
15
exercising powers under this Act may use or disclose the
16
information for a secondary permissible purpose if:
17
(a) the person considers it is appropriate to do so; and
18
(b) in relation to a disclosure--the disclosure is to:
19
(i) an officer or employee of the Commonwealth or a State
20
or Territory; or
21
(ii) an officer or employee of a Commonwealth body or a
22
State or Territory body.
23
Note:
This subsection constitutes an authorisation for the purposes of the
24
Privacy Act 1988
and other laws (including the common law).
25
(2) A person to whom protected information is disclosed under
26
subsection (1) may use or disclose the information for the purposes
27
for which the information was disclosed under that subsection.
28
Note:
This subsection constitutes an authorisation for the purposes of the
29
Privacy Act 1988
and other laws (including the common law).
30
Miscellaneous
Chapter 11
Confidentiality of information
Part 3
Authorised uses and disclosures
Division 2
Section 390
No. , 2019
Export Control Bill 2019
441
390 Secretary may authorise use or disclosure of certain protected
1
information for secondary permissible purposes
2
(1) If the Secretary considers it is appropriate to do so, the Secretary
3
may, in writing, authorise a person:
4
(a)
to use protected information (other than protected
5
information in relation to which section 391 applies) for a
6
secondary permissible purpose that is specified in the
7
authorisation; or
8
(b) to disclose to a specified person, or to a specified class of
9
persons, protected information (other than protected
10
information in relation to which section 391 applies) for a
11
secondary permissible purpose that is specified in the
12
authorisation.
13
Example: The Secretary could, under this subsection, authorise a person to
14
disclose certain protected information to:
15
(a) a third party authorised officer; or
16
(b) an accredited veterinarian; or
17
(c) a body that is authorised to perform functions or exercise powers
18
in relation to the health and welfare of animals or the health and
19
condition of animal reproductive material under an Australian
20
law.
21
(2)
A person who is authorised to use or disclose protected information
22
under subsection (1) may use or disclose the information in
23
accordance with the authorisation.
24
Note:
This subsection constitutes an authorisation for the purposes of the
25
Privacy Act 1988
and other laws (including the common law).
26
(3) A person to whom protected information is disclosed under
27
subsection (2) may use or disclose the information for the purposes
28
for which the information was disclosed under that subsection.
29
Note:
This subsection constitutes an authorisation for the purposes of the
30
Privacy Act 1988
and other laws (including the common law).
31
Chapter 11
Miscellaneous
Part 3
Confidentiality of information
Division 2
Authorised uses and disclosures
Section 391
442
Export Control Bill 2019
No. , 2019
391 Authorisation to use or disclose sensitive information or certain
1
other protected information for secondary permissible
2
purposes
3
Application of this section
4
(1) This section applies in relation to protected information that is:
5
(a) sensitive information; or
6
(b) information obtained by a person in performing functions or
7
duties or exercising powers under Chapter 10 (compliance
8
and enforcement) or the Regulatory Powers Act.
9
Note:
For
sensitive information
, see section 12.
10
Secretary may authorise use or disclosure of information for
11
secondary permissible purposes
12
(2) If the Secretary considers it is appropriate to do so, the Secretary
13
may, in writing, authorise a person:
14
(a)
to use protected information to which this section applies for
15
a secondary permissible purpose that is specified in the
16
authorisation; or
17
(b) to disclose to a specified person, or to a specified class of
18
persons, protected information to which this section applies
19
for a secondary permissible purpose that is specified in the
20
authorisation.
21
(3) The Secretary must not, under paragraph (2)(b), authorise the
22
disclosure of information to a person other than:
23
(a) an officer or employee of the Commonwealth or a State or
24
Territory; or
25
(b) an officer or employee of a Commonwealth body or a State
26
or Territory body; or
27
(c) a third party authorised officer.
28
(4)
A person who is authorised to use or disclose protected information
29
under subsection (2) may use or disclose the information in
30
accordance with the authorisation.
31
Note:
This subsection constitutes an authorisation for the purposes of the
32
Privacy Act 1988
and other laws (including the common law).
33
Miscellaneous
Chapter 11
Confidentiality of information
Part 3
Authorised uses and disclosures
Division 2
Section 392
No. , 2019
Export Control Bill 2019
443
(5) A person to whom protected information is disclosed under
1
subsection (4) may use or disclose the information for the purposes
2
for which the information was disclosed under that subsection.
3
Note:
This subsection constitutes an authorisation for the purposes of the
4
Privacy Act 1988
and other laws (including the common law).
5
392 Authorisation to use or disclose protected information for
6
purposes of proceedings
7
A person who obtains protected information may disclose the
8
information:
9
(a) to a court or tribunal, or in accordance with an order of a
10
court or tribunal, for the purposes of proceedings; or
11
(b) to a coronial inquiry, or in accordance with an order of a
12
coroner, for the purposes of a coronial inquiry.
13
Note 1:
This section constitutes an authorisation for the purposes of the
14
Privacy Act 1988
and other laws.
15
Note 2:
The
National Security Information (Criminal and Civil Proceedings)
16
Act 2004
may apply to proceedings under this Division.
17
393 Authorisation to use or disclose protected information for
18
purposes of enforcement-related activity
19
(1) A person who obtains protected information may use the
20
information, or disclose the information to an enforcement body, if
21
the person reasonably believes that the use or disclosure is
22
reasonably necessary for, or directly related to, one or more
23
enforcement-related activities being conducted by, or on behalf of,
24
that enforcement body.
25
Note:
This subsection constitutes an authorisation for the purposes of the
26
Privacy Act 1988
and other laws (including the common law).
27
(2) An enforcement body to which protected information is disclosed
28
under subsection (1) may use or disclose the information for the
29
purposes of conducting one or more enforcement-related activities.
30
Note:
This subsection constitutes an authorisation for the purposes of the
31
Privacy Act 1988
and other laws (including the common law).
32
Chapter 11
Miscellaneous
Part 3
Confidentiality of information
Division 2
Authorised uses and disclosures
Section 394
444
Export Control Bill 2019
No. , 2019
394 Authorisation to use or disclose protected information if
1
required by another Australian law
2
A person who obtains protected information may use or disclose
3
the information if the use or disclosure is required under an
4
Australian law other than this Act.
5
Note:
This section constitutes an authorisation for the purposes of the
6
Privacy Act 1988
and other laws (including the common law).
7
395 Authorisation to disclose protected information to person to
8
whom information relates, or to use or disclose protected
9
information with consent
10
(1) A person who obtains protected information may disclose the
11
information to the person to whom the information relates.
12
Note:
This subsection constitutes an authorisation for the purposes of the
13
Privacy Act 1988
and other laws (including the common law).
14
(2) A person (the
first person
) who obtains protected information may
15
use or disclose the information for a purpose if the person to whom
16
the information relates has expressly consented to the first person
17
using or disclosing the information for that purpose.
18
Note:
This subsection constitutes an authorisation for the purposes of the
19
Privacy Act 1988
and other laws (including the common law).
20
396 Authorisation to disclose protected information to person who
21
provided information
22
A person who obtains protected information may disclose the
23
information to the person who provided the information.
24
Note:
This section constitutes an authorisation for the purposes of the
25
Privacy Act 1988
and other laws (including the common law).
26
Miscellaneous
Chapter 11
Confidentiality of information
Part 3
Offences
Division 3
Section 397
No. , 2019
Export Control Bill 2019
445
Division 3--Offences
1
397 Unauthorised use or disclosure of protected information
2
Fault-based offence
3
(1) A person commits an offence if:
4
(a) the person obtains protected information in the course of, or
5
for the purposes of, performing functions or duties or
6
exercising powers under this Act; and
7
(b) the person uses or discloses the information; and
8
(c) the use or disclosure is not authorised by a provision in
9
Division 2.
10
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
11
Exception for use or disclosure in good faith
12
(2) Subsection (1) does not apply to a person to the extent that the
13
person uses or discloses protected information in good faith and in
14
purported compliance with a provision in Division 2.
15
Note:
A defendant bears an evidential burden in relation to the matters in
16
this section (see subsection 13.3(3) of the
Criminal Code
).
17
Chapter 11
Miscellaneous
Part 4
Cost recovery
Division 1
Introduction
Section 398
446
Export Control Bill 2019
No. , 2019
Part 4--Cost recovery
1
Division 1--Introduction
2
398 Simplified outline of this Part
3
Fees may be charged in relation to activities carried out by, or on
4
behalf of, the Commonwealth in the performance of functions or
5
the exercise of powers under this Act.
6
A fee must not be such as to amount to taxation.
7
The time for paying a cost-recovery charge and the person who is
8
liable to pay the cost-recovery charge are as prescribed by the
9
rules.
10
If a cost-recovery charge is not paid at or before the time it is due
11
and payable, a late payment fee may also be payable.
12
A cost-recovery charge that is due and payable to the
13
Commonwealth under this Act may be recovered as a debt due to
14
the Commonwealth by action in a relevant court.
15
The Secretary may remit or refund a cost-recovery charge in
16
certain circumstances.
17
The Secretary may refuse to carry out, or direct a person not to
18
carry out, activities in relation to a person who is liable to pay a
19
cost-recovery charge that is due and payable.
20
Miscellaneous
Chapter 11
Cost recovery
Part 4
Fees
Division 2
Section 399
No. , 2019
Export Control Bill 2019
447
Division 2--Fees
1
399 Fees and other rules for fee-bearing activities
2
(1) The rules may prescribe fees that may be charged in relation to
3
activities (
fee-bearing activities
) carried out by, or on behalf of, the
4
Commonwealth in the performance of functions or the exercise of
5
powers under this Act.
6
Note:
Fees may also be charged by the following:
7
(a) certain issuing bodies (see section 64);
8
(b) approved auditors (see section 275);
9
(c) approved assessors (see section 283);
10
(d) State or Territory authorised officers and third party authorised
11
officers (see section 303).
12
(2) Without limiting subsection (1), the rules may specify that the
13
amount of a fee is the cost incurred by the Commonwealth in
14
arranging and paying for another person to carry out the relevant
15
fee-bearing activity.
16
(3) A fee prescribed under subsection (1) must not be such as to
17
amount to taxation.
18
(4) The rules may also make provision for and in relation to either or
19
both of the following:
20
(a) deposits to be paid in relation to fee-bearing activities;
21
(b) fees to be paid in relation to specified applications.
22
Chapter 11
Miscellaneous
Part 4
Cost recovery
Division 3
Payment of cost-recovery charges
Section 400
448
Export Control Bill 2019
No. , 2019
Division 3--Payment of cost-recovery charges
1
400 Paying cost-recovery charges
2
The rules may:
3
(a) prescribe the time when a specified cost-recovery charge is
4
due and payable; and
5
(b) prescribe rules relating to:
6
(i) the liability of a person's agent to pay cost-recovery
7
charges on behalf of the person; and
8
(ii) the recovery of such cost-recovery charges from the
9
person by the agent.
10
401 Person liable to pay cost-recovery charges
11
The rules may prescribe one or more persons who are liable to pay
12
a specified cost-recovery charge.
13
402 Notional payments by the Commonwealth
14
(1) The Minister administering the
Public Governance, Performance
15
and Accountability Act 2013
may give written directions for the
16
purpose of ensuring that cost-recovery charges are notionally
17
payable by the Commonwealth (or parts of the Commonwealth).
18
Note:
For notional payments and receipts, see section 76 of that Act.
19
(2) A direction given under subsection (1) is not a legislative
20
instrument.
21
Miscellaneous
Chapter 11
Cost recovery
Part 4
Unpaid cost-recovery charges
Division 4
Section 403
No. , 2019
Export Control Bill 2019
449
Division 4--Unpaid cost-recovery charges
1
403 Late payment fee
2
(1) If the rules specify the time when a cost-recovery charge (the
basic
3
charge
) is due and payable, the rules may also specify a fee (a
late
4
payment fee
) that is due and payable if the basic charge is not paid
5
at or before that time.
6
(2) Without limiting subsection (1), a late payment fee may relate to
7
each day or part of a day that the basic charge remains unpaid after
8
becoming due and payable.
9
(3) The rules may prescribe one or more persons who are liable to pay
10
a late payment fee in relation to a cost-recovery charge referred to
11
in paragraph (a) or (b) of the definition of
cost-recovery charge
in
12
section 12.
13
404 Recovery of cost-recovery charges
14
A cost-recovery charge that is due and payable to the
15
Commonwealth under this Act may be recovered as a debt due to
16
the Commonwealth by action in a relevant court.
17
Chapter 11
Miscellaneous
Part 4
Cost recovery
Division 5
Miscellaneous
Section 405
450
Export Control Bill 2019
No. , 2019
Division 5--Miscellaneous
1
405 Secretary may remit or refund cost-recovery charges
2
(1) The Secretary may remit or refund the whole or part of a
3
cost-recovery charge that is payable, or that has been paid, to the
4
Commonwealth if the Secretary is satisfied there are circumstances
5
that justify doing so.
6
(2) The Secretary may do so on the Secretary's own initiative or on
7
written application by a person.
8
406 Secretary may direct that activities not be carried out
9
If a person (the
debtor
) is liable to pay a cost-recovery charge that
10
is due and payable, the Secretary may refuse to carry out, or direct
11
a person not to carry out, specified activities or kinds of activities
12
in relation to the debtor under this Act until the cost-recovery
13
charge has been paid.
14
Miscellaneous
Chapter 11
Records
Part 5
Introduction
Division 1
Section 407
No. , 2019
Export Control Bill 2019
451
Part 5--Records
1
Division 1--Introduction
2
407 Simplified outline of this Part
3
The rules may require records to be retained by certain persons,
4
including:
5
(a)
persons who carry out, or have carried out, export
6
operations in relation to prescribed goods; and
7
(b)
persons who perform or have performed functions, or
8
who exercise or have exercised powers, under this Act.
9
A person who is required to retain a record in accordance with the
10
rules may commit an offence of strict liability if the person does
11
not retain the record.
12
Chapter 11
Miscellaneous
Part 5
Records
Division 2
Records
Section 408
452
Export Control Bill 2019
No. , 2019
Division 2--Records
1
408 Requirements to retain records
2
(1) The rules may make provision for and in relation to requiring
3
records to be retained by any of the following:
4
(a) a person who carries out, or has carried out, export operations
5
in relation to prescribed goods;
6
(b) the manager of an accredited property;
7
(c) a person who manages or controls, or has managed or
8
controlled, export operations at a registered establishment;
9
(d) a person who manages or controls, or has managed or
10
controlled, export operations in accordance with an approved
11
arrangement;
12
(e) a person who participates, or has participated, in the
13
management or control of the export business of a person
14
who holds an export licence (as provided by section 220);
15
(f) a person who carries out, or has carried out, export operations
16
in relation to non-prescribed goods in relation to which:
17
(i) an application for a government certificate or a tariff
18
rate quota certificate has been made; or
19
(ii) a government certificate or a tariff rate quota certificate
20
has been issued;
21
(g) a person who performs or has performed functions, or who
22
exercises or has exercised powers, under this Act.
23
Note:
A person may be required to make a record under a provision of this
24
Act. The following are examples of such requirements:
25
(a) the occupier of a registered establishment may be required to
26
make a record about a matter in accordance with a condition of
27
the registration of the establishment imposed under
28
subsection 113(1);
29
(b) the holder of an approved arrangement is required to make a
30
record of certain variations of the approved arrangement under
31
subsection 159(2).
32
(2) Without limiting subsection (1), the rules may make provision for
33
and in relation to any of the following:
34
(a) the kind of records that must be retained;
35
Miscellaneous
Chapter 11
Records
Part 5
Records
Division 2
Section 408
No. , 2019
Export Control Bill 2019
453
(b) the form in which records must be retained;
1
(c) the period for which records must be retained;
2
(d) the secure retention of records.
3
Strict liability offence
4
(3) A person commits an offence of strict liability if:
5
(a) the person is required to retain a record in accordance with
6
rules made for the purposes of subsection (1) or (2); and
7
(b) the person fails to comply with the requirement.
8
Penalty: 20 penalty units.
9
Chapter 11
Miscellaneous
Part 6
Miscellaneous
Division 1
Introduction
Section 409
454
Export Control Bill 2019
No. , 2019
Part 6--Miscellaneous
1
Division 1--Introduction
2
409 Simplified outline of this Part
3
This Part sets out miscellaneous provisions, including in relation to
4
the following:
5
(a)
taking, testing and analysing samples and the role of
6
analysts;
7
(b)
forfeiture of goods;
8
(c)
compensation for damaged and destroyed goods;
9
(d)
treatment of partnerships, unincorporated associations
10
and trusts;
11
(e)
reports about export of livestock;
12
(f)
compensation for acquisition of property;
13
(g)
circumstances in which the privilege against
14
self-incrimination does not apply;
15
(h)
penalties for hindering compliance with this Act or
16
influencing a person performing functions or duties or
17
exercising powers under this Act;
18
(i)
arrangements with States and Territories to assist in
19
carrying out this Act;
20
(j)
protection from civil proceedings for certain persons
21
who perform functions or duties, or exercise powers,
22
under this Act.
23
This Part also gives the Secretary the power to make rules for the
24
purposes of this Act. The rules are a disallowable legislative
25
instrument.
26
Miscellaneous
Chapter 11
Miscellaneous
Part 6
Taking, testing and analysing samples
Division 2
Section 410
No. , 2019
Export Control Bill 2019
455
Division 2--Taking, testing and analysing samples
1
410 Methods for taking, testing and analysing certain samples
2
(1) This section applies in relation to a sample of goods or any other
3
thing that is to be taken, tested or analysed under this Act (other
4
than in the performance of functions or duties or the exercise of
5
powers under Chapter 10 (compliance and enforcement) or the
6
Regulatory Powers Act).
7
(2) The sample must be taken, tested or analysed in accordance with:
8
(a) if a method is prescribed by the rules for that kind of
9
sample--the prescribed method; or
10
(b) in any other case:
11
(i) an applicable method specified in the Australia New
12
Zealand Food Standards Code; or
13
(ii) an applicable method specified in an Australian
14
Standard published by, or on behalf of, Standards
15
Australia; or
16
(iii) any other appropriate, validated and science-based
17
method approved by the Secretary.
18
411 Storage of samples
19
The rules may make provision for and in relation to the storage of
20
samples that may be tested or analysed under this Act.
21
412 Test or analysis may result in destruction or reduction in value
22
of sample
23
A person who is required or permitted to test or analyse a sample
24
of goods or any other thing under this Act, may carry out tests or
25
analysis that result in the destruction, or a reduction in the value, of
26
the sample or a package or goods associated with the sample.
27
Chapter 11
Miscellaneous
Part 6
Miscellaneous
Division 2
Taking, testing and analysing samples
Section 413
456
Export Control Bill 2019
No. , 2019
413 Appointment of analyst
1
(1) The Secretary may appoint a person to be an analyst for the
2
purposes of this Act.
3
(2) The Secretary must not appoint a person to be an analyst for the
4
purposes of this Act unless the Secretary is satisfied that:
5
(a) the person satisfies the training and qualification
6
requirements determined under subsection (3); or
7
(b) the person will satisfy those training and qualification
8
requirements before the person exercises any powers as an
9
analyst for the purposes of this Act.
10
(3) The Secretary must determine, in writing, training and qualification
11
requirements for analysts.
12
(4) A determination under subsection (3) is not a legislative
13
instrument.
14
414 Analyst may give certificate
15
(1) If a person is alleged to have contravened this Act in relation to
16
goods or any other thing, an analyst appointed under
17
section 413 may give a written certificate stating one or more of
18
the following matters:
19
(a) when and from whom the goods or other thing was received;
20
(b) what (if any) labels or other means of identifying the goods
21
or other thing accompanied the goods or other thing when it
22
was received;
23
(c) what covering the goods or other thing was in when it was
24
received;
25
(d) a description, and the weight, of the goods or other thing
26
received;
27
(e) when the goods or other thing, or a portion or sample of the
28
goods or other thing, was tested or analysed;
29
(f) a description of the method of testing or analysis;
30
(g) the results of the testing or analysis;
31
(h) how the goods or other thing was dealt with after handling by
32
the analyst, including details of:
33
Miscellaneous
Chapter 11
Miscellaneous
Part 6
Taking, testing and analysing samples
Division 2
Section 415
No. , 2019
Export Control Bill 2019
457
(i) the quantity retained; and
1
(ii) the name of any person to whom any retained quantity
2
was given; and
3
(iii) measures taken to secure any retained quantity.
4
Note:
In certain circumstances, the certificate may be admitted as evidence
5
in proceedings in relation to the contravention (see section 415).
6
(2) A certificate under subsection (1) must be in a form approved by
7
the Secretary.
8
415 Admission of analyst's certificate in proceedings
9
(1) A certificate given under section 414 is (if the procedure in
10
subsection (2) of this section is complied with) admissible, in any
11
proceedings in relation to a contravention of this Act, as prima
12
facie evidence of:
13
(a) the matters in the certificate; and
14
(b) the correctness of the result of the analysis to which the
15
certificate relates.
16
Procedure to be followed before admitting certificate
17
(2) At least 14 days before the certificate is admitted as evidence in the
18
proceedings, the following must be given to the person (the
19
defendant
) who is alleged to have contravened this Act, or a legal
20
practitioner who is appearing for the defendant in the proceedings:
21
(a) a copy of the certificate;
22
(b) notice of the intention to produce the certificate as evidence
23
in the proceedings.
24
Analyst may be required to attend for cross-examination
25
(3) The defendant may (subject to subsection (4)) require the analyst
26
who gave the certificate to be:
27
(a) called as a witness for the person who instituted the
28
proceedings; and
29
(b) cross-examined (as if the analyst had given evidence of the
30
matters stated in the certificate).
31
Chapter 11
Miscellaneous
Part 6
Miscellaneous
Division 2
Taking, testing and analysing samples
Section 415
458
Export Control Bill 2019
No. , 2019
Requirements for cross-examining analyst
1
(4) The analyst may be required to be called as a witness for the
2
person who instituted the proceedings only if:
3
(a) the person who instituted the proceedings has been given at
4
least 4 days' notice of the defendant's intention to require the
5
analyst to be called; or
6
(b) the court, by order, allows the defendant to require the
7
analyst to be called.
8
Proof of certificate
9
(5) For the purposes of this Act, a document purporting to be a
10
certificate given under section 414 is taken to be a certificate that
11
has been given in accordance with that section, unless the contrary
12
is established.
13
Miscellaneous
Chapter 11
Miscellaneous
Part 6
Forfeiture of goods
Division 3
Section 416
No. , 2019
Export Control Bill 2019
459
Division 3--Forfeiture of goods
1
416 Forfeiture of goods
2
(1) If a person is convicted of an offence against this Act, or is found
3
to have contravened a civil penalty provision of this Act, in relation
4
to particular goods, the court may order the forfeiture to the
5
Commonwealth of the goods.
6
(2) The forfeiture of goods under subsection (1) extends to the
7
forfeiture of any coverings in which the goods are contained.
8
(3) If goods are forfeited to the Commonwealth under subsection (1),
9
the Secretary may cause the goods to be sold, destroyed or
10
otherwise disposed of.
11
(4) Any costs reasonably incurred by the Commonwealth in storing or
12
disposing of goods forfeited under an order made under
13
subsection (1) may be recovered in a court of competent
14
jurisdiction as a debt due to the Commonwealth from the person
15
against whom the order is made.
16
Chapter 11
Miscellaneous
Part 6
Miscellaneous
Division 4
Damaged and destroyed goods etc.
Section 417
460
Export Control Bill 2019
No. , 2019
Division 4--Damaged and destroyed goods etc.
1
417 Person complying with direction or request must not damage or
2
destroy goods
3
(1) This section applies to a person if:
4
(a) the Secretary or an authorised officer directs or requests the
5
person to do a thing in relation to goods for the purposes of
6
this Act; and
7
(b) the person is not:
8
(i) the owner of the goods; or
9
(ii) a person (other than an authorised officer) who is in
10
possession or control of the goods.
11
Civil penalty provision
12
(2) The person is liable to a civil penalty if:
13
(a) in complying with the direction or request, the person
14
engages in conduct that causes the goods to be damaged or
15
destroyed; and
16
(b) either:
17
(i) the person did not act in good faith in engaging in that
18
conduct; or
19
(ii) the damage or destruction was not a reasonable or
20
necessary result of complying with the direction or
21
request.
22
Civil penalty:
120 penalty units.
23
418 Goods seized in certain circumstances may be destroyed
24
If:
25
(a) an authorised officer, or a person assisting an authorised
26
officer, seizes perishable goods under Chapter 10
27
(compliance and enforcement) or the Regulatory Powers Act;
28
and
29
Miscellaneous
Chapter 11
Miscellaneous
Part 6
Damaged and destroyed goods etc.
Division 4
Section 419
No. , 2019
Export Control Bill 2019
461
(b) the goods are not able to be stored in a way that preserves
1
them;
2
the Secretary may cause the goods to be destroyed or otherwise
3
disposed of.
4
419 Compensation for damaged or destroyed goods
5
(1) The Secretary may, if the Secretary considers it appropriate to do
6
so, approve the payment of a reasonable amount of compensation
7
under this section in respect of:
8
(a) goods that are damaged by a person in the course of
9
performing functions or duties, or exercising powers, under
10
this Act; or
11
(b) goods that are destroyed under this Act.
12
Note 1:
Compensation is not payable unless a claim is made by or on behalf of
13
the owner of the goods (see subsection 420(3)).
14
Note 2:
The amount of compensation is the amount prescribed by, or
15
determined in accordance with, the rules (see subsection 420(5)).
16
Note 3:
If the Secretary does not approve the payment of a reasonable amount
17
of compensation under this section, the owner of the goods may be
18
entitled to compensation under section 425 (compensation for
19
acquisition of property).
20
Exceptions
21
(2) The Secretary must not approve the payment of compensation
22
under subsection (1) in respect of goods that are damaged:
23
(a) as a result of samples of the goods being taken:
24
(i) during an audit conducted in relation to the goods under
25
Part 1 of Chapter 9; or
26
(ii) during an assessment of the goods carried out under
27
Part 2 of Chapter 9; or
28
(iii) as permitted by subsection 327(2) or 330(2); or
29
(b) in any other circumstances prescribed by the rules.
30
Chapter 11
Miscellaneous
Part 6
Miscellaneous
Division 4
Damaged and destroyed goods etc.
Section 420
462
Export Control Bill 2019
No. , 2019
420 Claims for, and amount of, compensation
1
Application
2
(1) This section applies in relation to goods (
compensable goods
) in
3
respect of which the Secretary may approve a payment of
4
compensation under subsection 419(1).
5
Compensation must be paid to owner
6
(2) Compensation approved under subsection 419(1) in respect of
7
compensable goods must:
8
(a) if there is only one owner of the compensable goods--be
9
paid to the owner; or
10
(b) if there are 2 or more owners of the compensable goods--be
11
divided among those owners as prescribed by the rules.
12
Note:
Owner
is defined in subsection (6).
13
Requirements relating to claim for compensation
14
(3) An owner of compensable goods is not entitled to compensation
15
under subsection 419(1) in respect of the goods unless a claim for
16
compensation is made by or on behalf of the owner within 12
17
months after the goods were damaged or destroyed (as the case
18
may be).
19
(4) A claim for compensation under subsection (3) must:
20
(a) if the Secretary has approved a form for such claims--be in
21
that form; and
22
(b) be accompanied by the documents (if any) prescribed by the
23
rules.
24
Amount of compensation
25
(5) The amount of compensation payable under subsection 419(1) is a
26
reasonable amount prescribed by, or determined in accordance
27
with, the rules.
28
Miscellaneous
Chapter 11
Miscellaneous
Part 6
Damaged and destroyed goods etc.
Division 4
Section 420
No. , 2019
Export Control Bill 2019
463
Definition of
owner
1
(6) In this section:
2
owner
, in relation to compensable goods, means a person who had
3
an interest in the goods at the time they were damaged or
4
destroyed, but does not include:
5
(a) a person who had such an interest by reason only that the
6
person was entitled to the benefit of a mortgage or other
7
charge, or a lien, in respect of the goods (other than a PPSA
8
security interest); or
9
(b) a person who held a PPSA security interest in the goods;
10
unless the person was in possession or control of the goods at that
11
time.
12
Chapter 11
Miscellaneous
Part 6
Miscellaneous
Division 5
Partnerships, unincorporated associations and trusts
Section 421
464
Export Control Bill 2019
No. , 2019
Division 5--Partnerships, unincorporated associations and
1
trusts
2
421 Treatment of partnerships
3
(1) This Act applies to a partnership as if it were a person, but with the
4
changes set out in this section.
5
(2) An obligation that would otherwise be imposed on the partnership
6
by this Act is imposed on each partner instead, but may be
7
discharged by any of the partners.
8
(3) An offence against this Act that would otherwise have been
9
committed by the partnership is taken to have been committed by
10
each partner in the partnership, at the time the offence was
11
committed, who:
12
(a) did the relevant act or made the relevant omission; or
13
(b) aided, abetted, counselled or procured the relevant act or
14
omission; or
15
(c) was in any way knowingly concerned in, or party to, the
16
relevant act or omission (whether directly or indirectly and
17
whether by any act or omission of the partner).
18
(4) This section applies to a contravention of a civil penalty provision
19
in a corresponding way to the way in which it applies to an
20
offence.
21
(5) For the purposes of this Act, a change in the composition of a
22
partnership does not affect the continuity of the partnership.
23
422 Treatment of unincorporated associations
24
(1) This Act applies to an unincorporated association as if it were a
25
person, but with the changes set out in this section.
26
(2) An obligation that would otherwise be imposed on the association
27
by this Act is imposed on each member of the association's
28
committee of management instead, but may be discharged by any
29
of the members.
30
Miscellaneous
Chapter 11
Miscellaneous
Part 6
Partnerships, unincorporated associations and trusts
Division 5
Section 423
No. , 2019
Export Control Bill 2019
465
(3) An offence against this Act that would otherwise have been
1
committed by the unincorporated association is taken to have been
2
committed by each member of the association's committee of
3
management, at the time the offence was committed, who:
4
(a) did the relevant act or made the relevant omission; or
5
(b) aided, abetted, counselled or procured the relevant act or
6
omission; or
7
(c) was in any way knowingly concerned in, or party to, the
8
relevant act or omission (whether directly or indirectly and
9
whether by any act or omission of the member).
10
(4) This section applies to a contravention of a civil penalty provision
11
in a corresponding way to the way in which it applies to an
12
offence.
13
423 Treatment of trusts
14
(1) This Act applies to a trust as if it were a person, but with the
15
changes set out in this section.
16
Trusts with a single trustee
17
(2) If the trust has a single trustee:
18
(a) an obligation that would otherwise be imposed on the trust by
19
this Act is imposed on the trustee instead; and
20
(b) an offence against this Act that would otherwise have been
21
committed by the trust is taken to have been committed by
22
the trustee.
23
Trusts with multiple trustees
24
(3) If the trust has 2 or more trustees:
25
(a) an obligation that would otherwise be imposed on the trust by
26
this Act is imposed on each trustee instead, but may be
27
discharged by any of the trustees; and
28
(b) an offence against this Act that would otherwise have been
29
committed by the trust is taken to have been committed by
30
each trustee of the trust, at the time the offence was
31
committed, who:
32
Chapter 11
Miscellaneous
Part 6
Miscellaneous
Division 5
Partnerships, unincorporated associations and trusts
Section 423
466
Export Control Bill 2019
No. , 2019
(i) did the relevant act or made the relevant omission; or
1
(ii) aided, abetted, counselled or procured the relevant act or
2
omission; or
3
(iii) was in any way knowingly concerned in, or party to, the
4
relevant act or omission (whether directly or indirectly
5
and whether by any act or omission of the trustee).
6
Contraventions of civil penalty provisions
7
(4) This section applies to a contravention of a civil penalty provision
8
in a corresponding way to the way in which it applies to an
9
offence.
10
Miscellaneous
Chapter 11
Miscellaneous
Part 6
Matters relating to export of livestock
Division 6
Section 424
No. , 2019
Export Control Bill 2019
467
Division 6--Matters relating to export of livestock
1
424 Report to Parliament about export of livestock
2
(1) Within 1 month after the end of each reporting period (within the
3
meaning of subsection (4)), the Secretary must give the Minister a
4
report containing the information referred to in subsection (2) that
5
has been provided to the Secretary during the reporting period in
6
relation to the carriage of livestock on a vessel to a port outside
7
Australian territory (whether or not the carriage occurred during
8
the reporting period).
9
(2) The information must be based on reporting by the master of the
10
vessel under Marine Orders made under subsection 342(1) of the
11
Navigation Act 2012
and must include the following:
12
(a) the name of the exporter;
13
(b) the month and year in which the completion of the loading of
14
the livestock occurred;
15
(c) the port or ports at which the loading took place;
16
(d) the port or ports at which the livestock were discharged;
17
(e) the month and year in which the completion of the discharge
18
of the livestock occurred at each port;
19
(f) the duration of the voyage;
20
(g) the type or types of livestock;
21
(h) the number of each type of livestock loaded;
22
(i) the total mortality for each type of livestock;
23
(j) the percentage mortality for each type of livestock;
24
(k) any action taken by the Secretary in relation to the exporter
25
as a result of the reporting by the master of the vessel.
26
(3) The Minister must arrange for a copy of the report to be tabled in
27
each House of the Parliament within 15 sitting days of the House
28
after the report is given to the Minister.
29
(4) For the purposes of this section, each of the following periods is a
30
reporting period:
31
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(a) the period of 6 months starting on the first 1 July or 1 January
1
that occurs after the commencement of this section;
2
(b) each subsequent period of 6 months.
3
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469
Division 7--Miscellaneous
1
425 Compensation for acquisition of property
2
(1) If the operation of this Act would result in an acquisition of
3
property (within the meaning of paragraph 51(xxxi) of the
4
Constitution) from a person otherwise than on just terms (within
5
the meaning of that paragraph), the Commonwealth is liable to pay
6
a reasonable amount of compensation to the person.
7
(2) If the Commonwealth and the person do not agree on the amount
8
of the compensation, the person may institute proceedings in:
9
(a) the Federal Court; or
10
(b) the Supreme Court of a State or Territory;
11
for the recovery from the Commonwealth of such reasonable
12
amount of compensation as the court determines.
13
426 Privilege against self-incrimination
14
Person not entitled to refuse to answer questions, provide
15
information or produce documents under certain provisions of this
16
Act
17
(1) A person is not excused from answering a question, providing
18
information, or producing a document under section 66, 74, 107,
19
145, 185, 218, 235, 240, 244, 285, 298B or 378 on the ground that
20
the answer, the information or the production of the document
21
might tend to incriminate the person or make the person liable to a
22
penalty.
23
Use/derivative use indemnity applies to answer, information or
24
document
25
(2) However, in the case of an individual:
26
(a) the answer given, the information provided or the document
27
produced; and
28
(b) answering the question, providing the information or
29
producing the document; and
30
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(c) any information, document or thing obtained as a direct or
1
indirect consequence of the answering of the question, the
2
provision of the information or the production of the
3
document;
4
are not admissible in evidence against the individual in any
5
criminal or civil proceedings, except proceedings under, or arising
6
out of, section 136.1, 137.1 or 137.2 of the
Criminal Code
or
7
section 367, 368 or 369 of this Act (false or misleading statements
8
in applications and false or misleading information or documents)
9
in relation to answering the question, providing the information or
10
producing the document.
11
Privilege not otherwise affected
12
(3) Except as provided by subsection (1), nothing in this Act affects
13
the right of an individual to refuse to answer a question, provide
14
information or produce a document on the ground that the answer,
15
the information or the production of the document might tend to
16
incriminate the individual or make the individual liable to a
17
penalty.
18
427 Hindering compliance with the Act etc.
19
(1) A person must not engage in conduct that hinders or prevents
20
another person from:
21
(a) performing functions or duties, or exercising powers, under
22
this Act; or
23
(b) complying with this Act or a direction given under this Act.
24
Note:
The physical elements of an offence against subsection (2) are set out
25
in this subsection (see section 370).
26
Fault-based offence
27
(2) A person commits an offence if the person contravenes
28
subsection (1).
29
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
30
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Civil penalty provision
1
(3) A person is liable to a civil penalty if the person contravenes
2
subsection (1).
3
Civil penalty:
960 penalty units.
4
427A Influencing a person performing functions or duties or
5
exercising powers
6
(1) A person contravenes this subsection if:
7
(a) the person engages in conduct; and
8
(b) the person does so with the intention of dishonestly
9
influencing another person in the performance of the other
10
person's functions or duties, or the exercise of the other
11
person's powers, under this Act.
12
Note 1:
For
dishonest
, see section 12.
13
Note 2:
The physical elements of an offence against subsection (2) are set out
14
in this subsection (see section 370).
15
Fault-based offence
16
(2) A person commits an offence if the person contravenes
17
subsection (1).
18
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
19
Civil penalty provision
20
(3) A person is liable to a civil penalty if the person contravenes
21
subsection (1).
22
Civil penalty:
960 penalty units.
23
428 Power or requirement to do or cause a thing to be done
24
(1) For the purposes of this Act, if a person (the
first person
) has the
25
power, or is required, under this Act to do a thing, the first person
26
is taken to have done the thing if the first person causes another
27
person to do the thing on behalf of the first person.
28
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(2) For the purposes of this Act, if a person has the power, or is
1
required, under this Act to cause or direct a thing to be done, the
2
person is taken to have caused or directed the thing to be done if
3
the person does the thing himself or herself.
4
429 Arrangements with States and Territories to assist in carrying
5
out this Act
6
The Minister may enter into an arrangement with a relevant
7
Minister of a State or Territory in relation to either or both of the
8
following:
9
(a) the use of any place in the State or Territory for the purposes
10
of this Act, and the control and management of the place;
11
(b) any matters necessary or convenient to be arranged in order
12
to enable the Commonwealth, the State or the Territory to
13
assist each other for the purposes of achieving the objects of
14
this Act.
15
Note:
The Secretary may also enter into arrangements with State or Territory
16
bodies for officers or employees of those bodies to be authorised
17
officers under this Act (see section 294).
18
430 Protection from civil proceedings
19
Protection for the Commonwealth and protected persons
20
(1) No civil proceeding lies against the Commonwealth or a protected
21
person in relation to anything done, or omitted to be done, in good
22
faith:
23
(a) by a protected person in the performance or purported
24
performance of a function or duty, or the exercise or
25
purported exercise of a power, conferred by this Act; or
26
(b) by a person in providing, or purporting to provide, assistance,
27
information or a document to a protected person, as a result
28
of a request, direction or other requirement made by the
29
protected person in the performance or purported
30
performance of a function or duty, or the exercise or
31
purported exercise of a power, conferred by this Act.
32
Note:
The reference to this Act includes a reference to instruments made
33
under this Act (see the definition of
this Act
in section 12).
34
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Section 431
No. , 2019
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473
Protection for persons assisting protected persons
1
(2) No civil proceeding lies against a person in relation to anything
2
done, or omitted to be done, in good faith by the person in
3
providing, or purporting to provide, assistance, information or a
4
document to a protected person, as a result of a request, direction
5
or other requirement made by the protected person in the
6
performance or purported performance of a function or duty, or the
7
exercise or purported exercise of a power, conferred by this Act.
8
Relationship to certain other provisions
9
(3) This section is subject to section 425 (acquisition of property).
10
Meaning of
protected person
11
(4)
Protected person
means a person who is, or was, any of the
12
following:
13
(a) the Minister;
14
(b) the Secretary;
15
(c) an authorised officer;
16
(d) an officer or employee of the Department.
17
431 Circumstances in which relevant Commonwealth liability of a
18
person is taken to have been paid
19
A relevant Commonwealth liability of a person is taken to have
20
been paid for the purposes of a specified provision of this Act in
21
the circumstances prescribed by the rules.
22
432 Rules
23
(1) The Secretary may, by legislative instrument, make rules
24
prescribing matters:
25
(a) required or permitted by this Act to be prescribed by the
26
rules; or
27
(b) necessary or convenient to be prescribed for carrying out or
28
giving effect to this Act.
29
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Note:
The rules may make different provision with respect to different
1
matters or different classes of matters (see subsection 33(3A) of the
2
Acts Interpretation Act 1901
).
3
(2) To avoid doubt, the rules may not do the following:
4
(a) create an offence or civil penalty;
5
(b) provide powers of:
6
(i) arrest or detention; or
7
(ii) entry, search or seizure;
8
(c) impose a tax;
9
(d) set an amount to be appropriated from the Consolidated
10
Revenue Fund under an appropriation in this Act;
11
(e) directly amend the text of this Act.
12
(3) Despite subsection 14(2) of the
Legislation Act 2003
, the rules may
13
make provision for or in relation to a matter by applying, adopting
14
or incorporating, with or without modification, any of the
15
following as in force or existing from time to time:
16
(a) any matter contained in:
17
(i) the document (the
original document
) published by the
18
Department titled
Australian Standards for the Export
19
of Livestock
;
or
20
(ii) any document (the
later document
) that is published by
21
the Department after the original document and that sets
22
out standards for the export of Australian livestock
23
(whether or not the title of the later document is the
24
same as the title of the original document);
25
(b) any matter contained in:
26
(i) the document titled
Australian Fish Names Standard
AS
27
5300-2015; or
28
(ii) any later Australian Standard that sets out Australian
29
fish names;
30
(c) any matter contained in any instrument or writing that:
31
(i) sets out requirements for export operations in Australian
32
territory, or in a part of Australian territory, in relation
33
to a kind of prescribed goods that are to be imported
34
into a country; and
35
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475
(ii) is made by the authority or body that is responsible for
1
regulating the importation of prescribed goods of that
2
kind into that country;
3
(d) any matter contained in the Australia New Zealand Food
4
Standards Code;
5
(e) any matter contained in the Codex Alimentarius issued by the
6
body known as the Codex Alimentarius Commission of the
7
Food and Agriculture Organization of the United Nations and
8
the World Health Organization;
9
(f) any matter contained in any instrument or writing made:
10
(i) by the Office International des Epizooties (also known
11
as the World Organisation for Animal Health); or
12
(ii) under the International Plant Protection Convention;
13
(g) any matter contained in any instrument or writing that:
14
(i) sets out, or provides a method for calculating, the tariff
15
rate quota for the importation of a kind of goods into a
16
country; and
17
(ii) is made by the authority or body that is responsible for
18
regulating the importation of goods of that kind into that
19
country.
20
Note 1:
The document referred to in subparagraph (a)(i) could in 2019 be
21
viewed on the Department's website (http://www.agriculture.gov.au).
22
Note 2:
The document referred to in subparagraph (b)(i) could in 2019 be
23
viewed at http://www.fishnames.com.au.
24
Note 3:
The document referred to in paragraph (e) could in 2019 be viewed on
25
the website of the Food and Agriculture Organization of the United
26
Nations (http://www.fao.org).
27
Note 4:
The Office International des Epizooties referred to in
28
subparagraph (f)(i) was created by the International Agreement for the
29
Creation at Paris of an International Office for Dealing with
30
Contagious Diseases of Animals, done at Paris on 25 January 1924.
31
The Agreement is in Australian Treaty Series 1925 No. 15 ([1925]
32
ATS 15) and could in 2019 be viewed in the Australian Treaties
33
Library on the AustLII website (http://www.austlii.edu.au).
34
Note 5:
Rules made for the purposes of section 29 may make provision in
35
relation to a matter by applying, adopting or incorporating any matter
36
contained in an instrument or other writing, as in force or existing
37
from time to time, if the instrument or other writing is published on
38
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the Department's website (http://www.agriculture.gov.au) (see
1
subsection 29(4)).
2
Note 6:
The rules may also apply, adopt or incorporate, with or without
3
modification, any matter contained in any other instrument or writing
4
as in force or existing at the time when the rules commence (see
5
paragraph 14(1)(b) of the
Legislation Act 2003
).
6
(4) In this section, a reference to this Act does not include a reference
7
to instruments made under this Act or the Regulatory Powers Act.
8