Agricultural and Veterinary Chemicals (Administration) Amendment Regulations 2004 (No. 1) 2004 No. 242
EXPLANATORY STATEMENT
Statutory Rules 2004 No. 242
Minute No. of 2004 - Parliamentary Secretary to
the Minister for Agriculture Fisheries and Forestry
Subject - Agricultural and Veterinary Chemicals (Administration) Act
1992
Agricultural and Veterinary Chemicals (Administration) Amendment Regulations
2004 (No. 1)
Section 73 of the Agricultural and Veterinary Chemicals (Administration) Act
1992 (the Act) provides that the Governor-General may make regulations
prescribing all matters required or permitted by the Act to be prescribed or
necessary or convenient to be prescribed for carrying out or giving effect to
the Act.
On 20 May 2004, the Australian Government deposited instruments of ratification
with the United Nations for:
• the Stockholm Convention on Persistent Organic
Pollutants (the Stockholm Convention); and
• the Rotterdam Convention on the Prior Informed
Consent Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade (the Rotterdam Convention).
Both Conventions will enter into force for Australia on 18 August 2004.
Sections 69CA, 69CB and 69C of the Act allow certain matters to be prescribed
by regulation to enable Australia to meet its obligations under international
agreements. The matters that may be prescribed by regulation for the purposes
of the Act include:
(1) international agreements to which Australia is a
party;
(2) information to be provided by a person who
imports, manufactures, uses, otherwise deals with and/or exports a chemical:
a. subject to:
(i) an international agreement to which Australia is
a party; or
(ii) an international agreement that has not entered
into force for Australia; or
b. under consideration for inclusion in such an
agreement;
(3) chemicals covered by such international
agreements;
(4) the period of time within which the
aforementioned information must be provided;
(5) prohibition on:
a. the import of the chemical into Australia;
b. the manufacture or use of the chemical in
Australia;
c. any other dealing with the chemical in Australia;
and
d. the export of the chemical from Australia.
The Regulations provide a generic framework to implement controls on
information requirements, importation, manufacture, use, other dealings and
exportation of chemicals subject to international agreements. The Regulations,
as a result, implement the necessary controls as they relate to specified
active constituents, or chemical products containing the active constituents,
to enable Australia to meet its obligations as a Party to the two
Conventions.
Each Convention requires specific, but differing controls, that are identified
for each active constituent listed in Schedule 1 to the Regulations. The
information provisions and the control of activities provisions allow Australia
to comply with the objectives of the Conventions by enabling the Department of
Agriculture, Fisheries and Forestry to understand how the relevant chemicals
are used within Australia, by whom, and their trade into and out of
Australia.
For the Stockholm Convention, the Regulations implement obligations by way of
information provisions and controls on importation, manufacture, use and
exportation. For the Rotterdam Convention, the Regulations implement
exportation obligations on relevant chemicals. No additional importation
controls are necessary under the Rotterdam Convention as importation of these
chemicals is already regulated under the National Registration Scheme for
Agricultural and Veterinary Chemicals.
Details of the Regulations are in the Attachment.
The Regulations commence on 18 August 2004, the date the Rotterdam Convention
and the Stockholm Convention enter into force for Australia.
Authority: Section 73 of the Agricultural
and Veterinary Chemicals (Administration) Act 1992
Attachment
DETAILS OF THE AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION)
AMENDMENT REGULATIONS 2004 (NO. 1)
Regulation 1
Regulation 1 provides for the Regulations to be named the Agricultural and
Veterinary Chemicals (Administration) Amendment Regulations 2004 (No.
1).
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Regulation 2
Regulation 2 provides that the Regulations commence on 18 August 2004, which is
the date that the Rotterdam Convention on the Prior Informed Consent Procedure
for Certain Hazardous Chemicals and Pesticides in International Trade
(Rotterdam Convention) and the Stockholm Convention on Persistent Organic
Pollutants (Stockholm Convention) enter into force for Australia.
Regulation 3
Regulation 3 provides that Schedule 1 amends the Agricultural and Veterinary
Chemicals (Administration) Regulations (the Principal Regulations).
SCHEDULE 1 - Amendments
Item [1] Before regulation 1
A new Part 1 heading "Preliminary" is inserted into the Principal Regulations
in line with other amendments in these Regulations that separate the Principal
Regulations into five different parts.
Item [2] Regulation 1
Item 2 renumbers regulation 1 as regulation 1.1 and amends the name of the
Principal Regulations to be the Agricultural and Veterinary Chemicals
(Administration) Regulations 1995 in line with current drafting practice.
Item [3] Regulation 2
Regulation 2 is renumbered as regulation 1.2 as a consequential change to Item
2.
Item [4] Regulation 3
Item 3 substitutes regulation 3 of the Principal Regulations with new
regulations 1.3, 1.4 and 1.5 and a new Part 2 and Part 3.
Regulation 1.3 Interpretation
Additional definitions are provided to define terms that are used in Parts 2-5
of the Regulations that are not covered in either the Agricultural and
Veterinary Chemicals (Administration) Act 1992 (the Act) or the
Agricultural and Veterinary Chemicals Code Act 1994. The existing
definitions in the Principal Regulations are amended, including the following
Significant terms:
(a) controlled chemical - this
refers to an active constituent or a chemical product listed in Schedule 1 or
to a chemical product containing an active constituent listed in Schedule 1
that is controlled by Part 3 of the Regulations.
(b) import decision - this
refers to a decision made by a Party to the Rotterdam Convention under Article
10 indicating whether the country consents to the import of the listed
chemical. The decision is given in response to the listing of a chemical in
Annex III of the Convention and may be 'no consent' where no import is allowed;
'consent' where import is allowed; or 'consent with conditions' where the
import is allowed if the specified conditions are met. This decision allows the
authorised officer to determine whether exports to Parties are permitted and
any conditions pertaining to the export.
(c) prescribed chemical -this is
defined to mean an active constituent or chemical product, or a chemical
product containing the active constituent that has been prescribed by the
Regulations.
Subregulation 1.3(2) provides that unless a contrary meaning is provided, a
term used in the Regulations has the same meaning as given in an identified
international agreement or arrangement.
Subregulation 1.3(3) provides that a reference in the Regulations to an active
constituent is a reference: to an active constituent for either a proposed or
an existing chemical product consistent with the meaning used in the Act.
Regulation 1.4 Meaning of authorised officer
The regulation provides that an authorised officer is an officer of the
Department of Agriculture, Fisheries and Forestry who has been authorised by
the Secretary for the purposes of the relevant provision of the Regulations. An
authorised officer is able to grant permissions under Part 3 of the
Regulations.
Regulation 1.5 Meaning of generic information about a person
Regulation 1.5 identifies the information that must be provided by a person in
relation to the import, manufacture, use, other dealings with, or export of
chemicals that are subject to the Regulations. The regulation requires the
person to provide to the Department of Agriculture, Fisheries and Forestry any
changes to the provided information within 30 days.
PART 2 PROVIDING INFORMATION ABOUT CERTAIN ACTIVE CONSTITUENTS AND
CHEMICAL PRODUCTS
Section 69CA of the Act allows for information to be sought on prescribed
active constituents or chemical products on importation, manufacture or use,
other dealings or exportation for any international agreement or arrangement to
which Australia is a party. It requires that the relevant international
agreement or arrangement and the relevant active constituent or chemical
product be prescribed.
Section 69CB of the Act allows for similar information to be sought for
international agreements or arrangements to which Australia is not yet a Party,
or for active constituents or chemical products that are the subject of
consideration by such an agreement or an international organisation. It
requires that the active constituent or chemical products be prescribed.
Regulation 2.05 Prescribed international agreements (Act, s69CA (1))
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The regulation identifies the Rotterdam and Stockholm Conventions as prescribed
international agreements for the provision of information under subsection 69CA
(1) of the Act.
Regulation 2.10 Prescribed chemicals (Act, s69CA (2))
The regulation provides that an active constituent included in Schedule 1 is a
prescribed active constituent for the purposes of subsection 69CA(2) of the Act
if so listed and described in Schedule 1. It also notes that each item in
Schedule 1 identifies the relevant international agreement or arrangement as
required under subsection 69CA(3) of the Act.
Regulation 2.15 Prescribed chemicals (Act, s69CB (1))
The regulation provides that an active constituent included as an item in
Schedule 1 is a prescribed active constituent for the purposes of subsection
69CB(2) of the Act if so listed and described in Schedule 1.
Regulation 2.20 Prescribed information - import (Act, ss69CA (2)(a) and 69CB
(2)(a))
The regulation prescribes the information to be provided on the importation of
a prescribed chemical. The information sought is the generic information on the
importer (specified in regulation 1.5), the technical and common names of the
chemical, the name of the country/ies from which the chemical is to be
exported, the intended use in Australia, the total quantity imported in any
calendar year (or part) and any other relevant information identified in
Schedule 1.
Regulation 2.25 Prescribed information - manufacture (Act, ss69CA (2)(b) and
69CB (2)(b))
The regulation prescribes the information to be provided on the manufacture of
a prescribed chemical. The information sought is the generic information on the
manufacturer (specified in regulation 1.5), the technical and common names of
the chemical, the place of manufacture, the intended use in Australia, the
total quantity manufactured in any calendar year (or part) and any other
relevant information identified in Schedule 1.
Regulation 2.30 Prescribed information - use (Act, ss69CA (2)(b) and 69CB
(2)(b))
The regulation is reserved to enable information to be prescribed in relation
to the use of prescribed chemicals in the future for the purposes of
subsections 69CA (2)(b) and 69CB (2)(b) as required.
Regulation 2.35 Prescribed information - other dealings (Act, ss69CA (2)(c)
and 69CB (2)(c))
The regulation is reserved to enable information to be prescribed in relation
to other dealings with prescribed chemicals in the future for the purpose of
subsections 69CA (2)(c) and 69CB (2)(c) as required.
Regulation 2.40 Prescribed information - export (Act, ss69CA (2)(d) and 69CB
(2)(d))
The regulation prescribes the information to be provided on the export of a
prescribed chemical. The information prescribed is the generic information on
the exporter (specified in regulation 1.5), the technical and common names of
the chemical, the name of the country/ies to which the chemical is to be
exported, the total quantity exported in any calendar year (or part) and any
other relevant information identified in Schedule 1.
Regulation 2.45 Prescribed period for giving prescribed information (Act,
ss69CA (5) and 69CB 5))
Subsections 69CA (5) and 69CB (5) of the Act provide that information provided
to the Department of Agriculture, Fisheries and Forestry for the purposes of
sections 69CA or 69CB as the case may be, must be provided within the period
prescribed in the regulations.
Regulation 2.45 prescribes the period within which information must be provided
for the purposes of subsection 69CA (5) and 69CB (5) of the Act.
Subregulation 2.45 (1) provides that the prescribed period commences on the
date that a notice is published in the Gazette requiring that the
prescribed information be provided and ends 30 days after the notice is
published. This notice period applies to the provision of information
prescribed in respect of either an active constituent that is already the
subject of an international agreement or arrangement to which Australia is a
party; or an active constituent that is under consideration for inclusion in
such an agreement; or which is included n an agreement to which Australia is
not a party. The information sought relates to any calendar year (or part) as
specified in the Gazette notice.
Subregulation 2.45 (2) prescribes the period within which information must be
provided for the purposes of subsection 69CA (5) and 69CB (5) of the Act for
active constituents that are already identified in Schedule 1 as prescribed
chemicals. The subregulation provides that the prescribed information relating
to annual imports, manufacture and exports together with generic information on
the importer, exporter or manufacturer must be provided by 28 February of the
next calendar year.
PART 3 PROHIBITION ON IMPORT. MANUFACTURE ETC OF CERTAIN ACTIVE
CONSTITUENTS AND CHEMICAL PRODUCTS
Section 69C of the Act provides that when an active constituent is the subject
of an international agreement or arrangement, certain activities - importation,
manufacture, use, other dealings, or export - may be prohibited either
absolutely or subject to conditions or restrictions.
Division 3.1 GENERAL
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Regulation 3.05 Prescribed international agreements (Act, s69C)
The regulation prescribes both the Rotterdam and Stockholm Conventions for the
purposes of section 69C of the Act.
Regulation 3.10 Effect of grant of permissions or multiple permits
The regulation provides that a permission or multiple permit granted under the
Regulations will not excuse compliance with any other legislative
requirements.
Regulation 3.15 Notice to be given if additional information required
The regulation requires additional information to be given by an applicant (as
defined) if requested in writing by an authorised officer or the Minister. An
authorised officer or the Minister may seek this information where necessary to
allow a decision to be made on the application made by the applicant. The
regulation stipulates that the additional information is to be provided within
28 days of receipt of the written notice and that the application is taken to
have been withdrawn if not provided within this time period. The Minister or
authorised officer may extend the time period, but must do so in writing.
Regulation 3.20 Matters that may be considered when making decision
The regulation outlines the matters that an authorised officer must take into
account in making a decision about an application for permission or multiple
permit to import, manufacture, use, export or otherwise deal with a chemical
subject to the Regulations. These matters include whether the applicant has
previously failed to comply with the Act; the Regulations, other agricultural
and veterinary chemicals legislation; or the Industrial Chemicals
(Notification and Assessment) Act 1989 under which other chemicals relating
to the Rotterdam and Stockholm Conventions are controlled; and regulations made
under any of these Acts.
Division 3.2 IMPORT
Subdivision 3.2.1 Absolute prohibition
Regulation 3. 45 Prohibited importation
The regulation provides that the import of a controlled chemical is prohibited
in all cases if the relevant item in Schedule 1 so indicates. Subregulation
3.45(2) provides that this absolute prohibition is prescribed for the purposes
of subsection 69C(1) of the Act.
Subdivision 3.2.2 Prohibition subject to conditions
Regulation 3.50 Chemicals to which this Subdivision applies
The regulation provides that Subdivision 3.2.2 applies to a controlled chemical
if the relevant item in Schedule 1 states that its importation is prohibited
without written permission. To allow for ease of reference in the Subdivision
of the Regulations, the regulation identifies such a controlled chemical as
an import-prohibited chemical.
Regulation 3.55 Prohibition
The regulation provides that the import of an import-prohibited chemical is
prohibited without written permission from an authorised officer or the
Minister. The permission must be provided to a Collector (at the Australian
border). The regulation also provides that any condition or restriction given
in Schedule 1 must be satisfied. The regulation allows Australia to fulfil its
obligations under Article 3 of the Stockholm Convention.
A note indicates that a permission under regulation 3.55 must be produced to a
Collector for the purposes of regulation 51 of the Customs (Prohibited
Imports) Regulations 1956. A second note indicates that a multiple entry
import permit is a permission for the purposes of the regulation.
Subregulation 3.55(2) prescribes the conditions or restrictions relating to the
import. A note indicates that a penalty is applicable for import in
contravention of a prescribed condition or restriction.
Subregulation 3.55(3) provides that permission to import an import-prohibited
chemical granted under Division 3.2 is required in addition to any permission
granted by the Australian Pesticides and Veterinary Medicines Authority (APVMA)
under subsection 69B of the Act, or any other legislation. In some cases, two
or more permissions may be required prior to import depending on other
legislation relating to imports.
Regulation 3.60 Applications for permission to import import-prohibited
chemicals
The regulation sets out the information that must be provided in an application
for permission to import an import-prohibited chemical.
Subregulation 3.60(2) requires an applicant to lodge an application on the
approved form setting out the generic information about the applicant, the name
of the active constituent or product, the quantity to be imported, the name of
the exporting country and the intended use in Australia. An applicant may be
required to submit additional information under regulation 3.15.
A note indicates that an authorised officer must give his/her decision in
writing to the applicant under regulation 3.505.
Regulation 3.65 When permission may be granted
The regulation provides that an authorised officer must be satisfied
that:
(a) in the case of chemicals subject to the Stockholm
Convention, the importation of an import-prohibited chemical meets the
conditions of environmentally sound disposal as set out in Article 6 under that
Convention; or
(b) the import of any other chemical is permitted
under the relevant Convention.
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If these conditions are not met, an authorised officer must not grant
permission to import the import-prohibited chemical.
Subregulation 3.65(3) makes it clear that even though permission may have been
granted by the APVMA, an authorised officer may refuse to grant a permission
under this Division of the Regulations.
Division 3.3 MANUFACTURE
Subdivision 3.3.1 Absolute prohibition
Regulation 3.100 Prohibited manufacture
The regulation provides that the manufacture of a controlled chemical is
prohibited in all cases if the relevant item in Schedule 1 so indicates.
Subregulation 3.100(2) provides that this absolute prohibition is prescribed
for the purposes of subsection 69C(1) of the Act.
Subdivision 3.3.2 Prohibition subject to conditions
Regulation 3.105 Chemicals to which this Subdivision applies
The regulation provides that Subdivision 3.3.2 applies to a controlled chemical
if the relevant item in Schedule 1 states that its manufacture is prohibited
without written permission. To allow for ease of reference in the Subdivision,
the regulation identifies such a controlled chemical as a
manufacture-prohibited chemical.
Regulation 3.110 Prohibition
The regulation provides that the manufacture of a manufacture-prohibited
chemical is prohibited without written permission from an authorised officer or
the Minister. The regulation prescribes the conditions and restrictions for a
manufacture-prohibited chemical that must be fulfilled.
The regulation indicates that such a permission must be produced to an
authorised officer or to an officer of another Commonwealth agency, or a State
or Territory employee authorised in writing by the Secretary.
A note indicates that a penalty of 300 penalty units applies for contravening a
prescribed condition or restriction (see subsection 69C(5) of the Act). (One
penalty unit is $110 - see section 4AA of the Crimes Act 1914 (Cth).)
Subregulation 3.110(3) makes it clear that a permission granted under this
regulation is required despite approval granted under any other legislation
(such as from the APVMA).
Regulation 3.115 Applications for permission to manufacture
manufacture-prohibited chemicals
The regulation sets out the information to be provided by an applicant in
making an application for permission to manufacture a manufacture-prohibited
chemical.
Subregulation 3.115(2) requires an applicant to lodge an application on the
approved form providing generic information on the applicant, the name of the
active constituent or product and the quantity to be manufactured. An applicant
mat be required to submit additional information under regulation 3.15 as noted
in the regulation.
A second note indicates that an authorised officer must give his/her decision
in writing to the applicant under regulation 3.505.
Regulation 3.120 When permission may be granted
Subregulation 3.120(1) provides that in circumstances where the relevant item
in Schedule 1 indicates that manufacture is prohibited except with permission
under subregulation 3.120(1), an authorised officer may grant an application
for permission to manufacture if satisfied that Australia has in effect a
production-specific exemption under the Stockholm Convention.
Under paragraph 9 of Article 10 of the Rotterdam Convention, if Australia
prohibits the import of a chemical or imposes conditions on the import of a
chemical, Australia is required to prohibit the manufacture of that chemical
for domestic use or make its manufacture subject to the same conditions.
Subregulation 3.120(2) provides that in circumstances where the relevant item
in Schedule 1 indicates that manufacture is prohibited except with permission
under this subregulation, an authorised officer may grant an application for
permission to manufacture if satisfied the chemical is to be manufactured for
the purposes of export only and not for use in Australia.
In circumstances were neither subregulation 3.120(1) or (2) applies,
subregulation 3.120(3) provides that an authorised officer may grant an
application for permission to manufacture if satisfied that the chemical is to
be manufactured for a use or purpose permitted under the relevant Convention.
If these conditions are not met, an authorised officer must not grant the
application.
Division 3.4 USE
Regulation 3.145 Absolute prohibition
The regulation provides that the use of a controlled chemical is prohibited in
all cases if the relevant item in Schedule 1 so indicates. Subregulation
3.145(2) provides that this absolute prohibition is prescribed for the purposes
of subsection 69C(1) of the Act.
Regulation 3.150 Prohibition
Subregulation 3.150(1) provides that use of a controlled chemical is prohibited
where the relevant item in Schedule 1 identifies that the applicable
international agreement is the Stockholm Convention unless paragraphs 3.150 (2)
(a) to (d) are complied with.
Subregulation (2) sets out the limited circumstances when such a controlled
chemical may be used:
(a) the chemical must be an approved active
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constituent or registered chemical product for the purposes of the National
Registration Scheme for Agricultural and Veterinary Chemicals; and
(b) the use must be in line with instructions of use
approved by the APVMA; in line with a use-specific exemption registered by
Australia under Article 4 of the Stockholm Convention; and permitted under
State/Territory laws.
Division 3.5 DEALING WITH CHEMICALS
Subdivision 3.5.1 Absolute prohibition
Regulation 3.175 Prohibited dealing
The regulation provides that any dealing with a controlled chemical is
prohibited in all cases if the relevant item in Schedule 1 so indicates, (other
than importation; manufacture, use or exportation). Subregulation 3.172(2)
provides that this absolute prohibition is prescribed for the purposes of
subsection 69C(1) of the Act.
Subdivision 3.5.2 Prohibition subject to conditions
Regulation 3.180 Chemicals to which this Subdivision applies
The regulation provides that Subdivision 3.5.2 applies to a controlled chemical
if the relevant item in Schedule 1 states that its dealing with is prohibited
without written permission. To allow for ease of reference in the Subdivision
of the Regulations, the regulation identifies such a controlled chemical as a
dealing-prohibited chemical.
Regulation 3.185 Prohibition
Subregulation 3.185(1) provides that any dealing of a dealing-prohibited
chemical is prohibited unless an authorised officer or the Minister has given
written permission for a person to deal with that chemical in the relevant
manner. This subregulation does not apply to the importation, manufacture, use
or exportation of dealing-prohibited chemicals.
Subregulation 3.185(2) prescribes, for the purposes of subsection 69C(1) of the
Act, the conditions and restrictions that apply to a dealing-prohibited
chemical. Those conditions and restrictions are:
(a) a person must only deal with a dealing-prohibited
chemical if they have the written permission of an authorised officer to do so
and must comply with any conditions of the permission;
(b) the permission must be produced to an authorised
officer or to an officer of another Commonwealth agency, or a State or
Territory employee authorised in writing by the Secretary; and
(c) any conditions or restrictions that are specified
in the relevant item in Schedule 1 for that chemical.
A note indicates that a penalty of 300 penalty units applies for contravening a
prescribed condition or restriction (see subsection 69C(1)(5) of the Act). (One
penalty unit is $110 - see section 4AA of the Crimes Act 1914 (Cth).)
Subregulation 3.185(3) provides that the requirements in regulation 3.185 must
be met even though a person may have obtained other relevant approvals under
other legislation (such as from the APVMA).
Regulation 3.190 Application for permission to deal with dealing-prohibited
chemicals
Under subregulation 3.1 90(l) a person may apply to the Department of
Agriculture, Fisheries and Forestry for a permission to deal with a
dealing-prohibited chemical.
Subregulation 3.190(2) sets out the information that a person must include in
an application for permission to deal with a dealing-prohibited chemical
including generic information about the applicant, the technical name of the
chemical and any other information that the applicant considers supports the
applicant's application.
An applicant may be required to submit additional information under regulation
3.15 as noted in the regulation. A second note indicates that an authorised
officer must give his/her decision in writing to the applicant under regulation
3.505.
Regulation 3.195 When permission may be granted
The regulation provides that an authorised officer may grant permission to a
person to deal with a dealing-prohibited chemical if the officer is satisfied
that the proposed dealing is in accordance with Australia's obligations under
the relevant international agreement or arrangement. There are currently no
prohibitions on dealings for the purposes of the Stockholm Convention or the
Rotterdam Convention.
The regulation provides that if an authorised officer is not satisfied as to
the matters in subregulation 3.195(1), then an authorised officer must refuse
to grant the application.
Division 3.6 EXPORT
Subdivision 3.6.1 Absolute prohibition
Regulation 3.200 Prohibited export
The regulation provides that export of a controlled chemical is prohibited in
all cases if the relevant item in Schedule 1 so indicates. Subregulation
3.200(2) provides that this absolute prohibition is prescribed for the purposes
of subsection 69C(1) of the Act.
Subdivision 3.6.2 Prohibition subject to conditions
Regulation 3.205 Chemicals to which this Subdivision applies
The regulation provides that Subdivision 3.6 applies to a controlled chemical
if the relevant item in Schedule 1 states that its export is prohibited without
written permission. To allow for ease of reference in the Subdivision of the
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Regulations, the regulation identifies such a controlled chemical as an
export-prohibited chemical.
Regulation 3.210 Prohibition
The regulation provides that the export of an export-prohibited chemical is
prohibited without written permission from an authorised officer or the
Minister. The permission must be provided to a Collector (at the Australian
border). The regulation allows for the permission to specify conditions or
restrictions that must be satisfied.
A note indicates that such a permission must be provided to a Collector to
comply with regulation 4A of the Customs (Prohibited Exports) Regulations
1958. A second note indicates that a multiple exit export permit granted
under Division 3.7 of these Regulations is a permission for the purposes of
this regulation.
Subregulation 3.210(2) prescribes the conditions or restrictions relating to
export. A note indicates that a penalty of 300 penalty units applies for
contravening a prescribed condition or restriction (see subsection 69C(5) of
the Act). (One penalty unit is $110 - see section 4AA of the Crimes Act 1914
(Cth).)
Subregulation 3.210 (3) provides that despite any permit issued by the APVMA
under section 69D of the Act or an export approval under any other legislation,
a permission under this regulation is required to export an export-prohibited
chemical.
Regulation 3.215 Applications for permission to export export-prohibited
chemicals
The regulation requires an applicant to lodge an application on the approved
form setting out the generic information about the applicant, the name of the
active constituent or product, the quantity to be exported, the name of the
importing country, the name of any transit country (if known) and the intended
use in the importing country.
An applicant could be required to submit additional information under
regulation 3.15 as noted in the regulation. A second note indicates that an
authorised officer must give his/her decision in writing to the applicant under
regulation 3.505.
Regulation 3.220 Additional information required for certain exports
Under Article 5 of the Rotterdam Convention, as a party to the Convention
Australia must notify the Secretariat to the Convention of any final regulatory
action taken in relation to banned or severely restricted chemicals made
because of concerns relating to human health or the environment. Under Article
12 of the Rotterdam Convention, an export notification must be provided to the
importing Party for any notified chemical (unless already listed on Annex III
in the same category as the final regulatory action). The export notification
must contain certain information as required under Annex V of the Convention
and be provided to the importing country prior to the export taking place.
The regulation provides that where Australia has made such a notification, the
relevant item in Schedule 1 indicates this. In these circumstances, the
regulation requires that information additional to that provided under
regulation 3.215 must be provided by the applicant. This additional information
includes the expected date of export, the applicable category (pesticide or
industrial use), the name and address of the importer, precautionary measures
to reduce exposure to and emission of the chemical and concentrations of the
active constituent where the export is a formulation. The regulation notes that
the information will form the basis of the export notification to the importing
country.
The information on pesticide or industrial use allows an authorised officer to
determine the category of the export - pesticide or industrial chemical - to
ascertain whether the chemical is to be exported for use as a pesticide and
therefore subject to the Regulations. If the proposed use of a chemical is for
a use other than a pesticide, the chemical is subject to the Customs
(Prohibited Exports) Regulations 1958.
Regulation 3.225 When permission must be granted
The regulation provides that permission for export of export-prohibited
chemical identified as being controlled under the Rotterdam Convention in the
relevant item in Schedule 1 must be granted in circumstances where the export
is to a country that is not a party to the Convention.
Regulation 3.230 When permission may be granted
In accordance with Article 3 of the Stockholm Convention, exports of chemicals
listed in Annex A and B to the Convention are to be prohibited to any country,
regardless of whether the country is a party to the Convention, except for a
number of limited exceptions set out in paragraph 2(b) of Article 3 of the
Convention.
Subregulation 3.230(1) provides, for active constituents identified as being
controlled under the Stockholm Convention, that permission for export will only
be granted where:
(a) the export is to be made for the purpose of
environmentally sound disposal; or
(b) to a party that is permitted to use that chemical
under the Convention; or
(c) to a non-party that has provided certification to
Australia regarding protecting human health or the environment.
Article 11 of the Rotterdam Convention requires that a person exporting
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chemicals listed in Annex III of the Convention must comply with the import
responses provided by parties. Subregulation 3.230(2) applies to a relevant
item identified in Schedule 1 as being subject to the Rotterdam Convention. It
provides that an authorised officer may grant permission for an export in
circumstances where an authorised officer determines that the export is to a
party and meets the requirements of the Convention, i.e. that the export is in
accordance with the import response notified by the party.
The regulation provides that an authorised officer may grant a permission to
export if neither of the above circumstances apply, where the export is for a
use or purpose permitted in the importing country under the relevant
convention.
The regulation provides that such a permission may not be granted even if the
APVMA has issued a certificate of export under section 69D of the Act.
Regulation 3.235 Required conditions
Article 13 of the Rotterdam Convention requires, in the case of exports of
chemicals listed in Annex III of the Convention, that:
(a) information on the Harmonized System customs
codes be provided on shipping documentation;
(b) labelling provide information on risks and/or
hazards to human health or the environment;
(c) a safety data sheet be sent to each importer when
the chemical is to be used for occupational purposes; and
(d) where practicable, such information is given in
the language of the importing party.
The regulation requires that, any export to a party to the Convention of a
relevant item identified in Schedule 1 as being controlled under the Rotterdam
Convention must meet these Convention obligations. The regulation also requires
that an annual statement on the total quantity of exports be provided to the
Department of Agriculture, Fisheries and Forestry by the end of February each
year.
Regulation 3.240 Deciding application for permission to export when import
decision available
Article 11 of the Rotterdam Convention requires parties to the Convention to
provide an import decision on all chemicals listed in Annex III; this forms the
basis of the prior informed consent to import.
The regulation applies to an export of a relevant item identified in Schedule 1
as being subject to the Rotterdam Convention. The regulation provides that in
deciding whether to grant an application for an export to a party to the
Convention, an authorised officer must take into account:
(a) in the case of a chemical listed in Annex III to
the Convention, the import response of the party, including the formulation
(where the chemical is listed as a severely hazardous pesticide formulation);
and
(b) the information provided by the applicant to meet
the information requirements of regulation 3.220.
Regulation 3.245 Deciding application for permission to export when import
decision not known
Article 11 of the Rotterdam Convention provides that an export must not be made
to a party that has failed to provide an import response, unless certain
conditions are met. The regulation applies to exports of a relevant item
identified in Schedule 1 as being controlled under the Rotterdam Convention to
a party to the Convention in circumstances where that party has not provided an
import decision. It requires that an authorised officer not grant a permission
for the export unless he or she is satisfied that the export is not in breach
of Australia's obligations under Article 11 of the Convention.
A note indicates why an import decision may not be known.
Regulation 3.250 When permission must be refused
The regulation specifies when an authorised officer must refuse to grant an
applicant permission to export an export-prohibited chemical. Subregulation
3.250(1) provides that an authorised officer must not grant consent to an
application to export an export-prohibited chemical, if the chemical is subject
to the Stockholm Convention unless the officer is satisfied of the matters
specified in subregulation 3.230(1), i.e. the export complies with the
requirements of the Convention.
Subregulation 3.250(2) provides that an application to export an
export-prohibited chemical that is subject to the Rotterdam Convention must be
refused if the export is to a party to that Convention and:
(a) that party has provided an import decision not to
consent to import; or
(b) in circumstances where a party has provided an
import decision to consent to import, but import is subject to conditions and
the conditions specified in the importing party's response would not be met by
the export/exporter; or
(c) the officer is not satisfied as to the matters in
subregulation 3.230(2), i.e. the export complies with the requirements of the
Convention.
A note provides the internet address where a list of which countries were
parties to the Rotterdam Convention is found.
The regulation provides that an authorised officer must refuse to grant a
permission to export if neither of the above circumstances apply and where the
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export is not for a use or purpose permitted in the importing country under the
relevant convention.
Division 3.7 MULTIPLE ENTRY IMPORT AND MULTIPLE EXIT EXPORT
PERMITS
Regulation 3.305 Definitions
The regulation defines terms used in Division 3.7. Import-prohibited chemical
is defined to mean a chemical to which Division 3.2 applies and
export-prohibited chemical is defined to mean a chemical to which Division 3.6
applies. This means that Division 3.7 applies to controlled chemicals, the
import and export of which is prohibited under the Regulations.
Regulation 3.310 Purpose
The regulation provides that the purpose of this Division is to enable an
applicant to apply for permission to import import-prohibited chemicals or
export export-prohibited chemicals, as the case may be, over a period of up to
twelve months. This means that a person who holds such a permit does not need
to apply for a separate permission for each import or export provided that the
application meets the requirements of this Division.
The regulation provides that a permission granted under this Division is a
permission for the purposes of Regulations on import and export respectively.
This means that the holder of a multiple entry import permit is not in
contravention of the prohibition in regulation 3.55 and the holder of multiple
exit export permit is not in contravention of the prohibition in regulation
3.210.
Regulation 3.315 Fit and proper person
The regulation provides a test for a fit and proper person in relation to the
granting, under regulation 3.340 of a multiple exit export permit to parties to
the Rotterdam Convention.
Subregulation 3.315(1) sets out the matters that an authorised officer must
take into account in determining whether a person is a fit and proper person
for the purposes of issuing a multiple permit under regulation 3.340. Those
matters include any conviction against the Act or the Regulations; certain
convictions of the applicant; whether the applicant has previously held a
multiple permit or permission under the Regulations and whether the applicant
has complied with any conditions or requirements specified in a permit or
permission. Subregulation 3.315(2) provides that the matters in subregulation
3.315(1) are in addition to any other matters that an authorised officer must
take into account for the purposes of this Division and any other relevant
matters.
The regulation is not applicable to applicants applying for a multiple exit
export permit for exports to non-parties, nor for severely hazardous pesticide
formulation with concentrations lower than those given in the relevant item in
Schedule 1.
Regulation 3.320 Multiple entry import permits
This regulation is reserved for future use to enable chemicals in respect of
which a multiple entry import permit may be available to be prescribed.
Regulation 3.325 When multiple entry import permits may be granted
This regulation is reserved for future use to enable the circumstances to be
prescribed in which a multiple entry import permit may be granted.
Regulation 3.330 Multiple exit export permits
Subregulation 3.330(1) provides that the regulation applies to exports of
export-prohibited chemicals that are subject to the Rotterdam Convention
provided that the export of the chemical is:
(a) to a non-party to that Convention; or
(b) the export is of a chemical that is a severely
hazardous pesticide formulation, in circumstances where the export is of a
formulation that is a different form or in a lower concentration than indicated
by the relevant item in Schedule 1, but not where the item is also identified
as subject to a notification of final regulatory action.
Subregulation 3.330(2) provides that if the circumstances in subregulation
3.330(1) apply, a person may apply to the Department of Agriculture, Fisheries
or Forestry for a multiple exit export permit.
Subregulation 3.330(3) sets out the information to be provided by an applicant
in making an application for a multiple exit export permit. The subregulation
requires an applicant to lodge an application on the approved form, providing
the generic information about the applicant and the following information on
each chemical to be included on the permit:
(a) the technical name of the chemical;
(b) in the case of non-parties, countries to whom the
exports are to be made;
(c) in the case of severely hazardous pesticide
formulations, the formulation to be exported; and
(d) the quantity, or an estimate of the quantity, to
be exported.
Regulation 3.335 When multiple exit export permits may be granted -
general
The regulation provides that an authorised officer may grant a multiple permit
when satisfied that the export meets the requirements of the Rotterdam
Convention.
Where an applicant has previously failed to comply with any condition or
restriction specified in a permission or when an authorised officer is not
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satisfied, the permit must be refused.
Regulation 3.340 Grant of multiple exit export permits in special
circumstances
The regulation provides that an authorised officer may grant a multiple permit
for controlled chemicals that are being exported to parties to the Convention,
where the relevant item in Schedule; 1 indicates that the chemical is subject
to the Rotterdam Convention and where the person has an aggregate history of
exporting export-prohibited chemicals under these Regulations. In granting a
permit under the regulation, an authorised officer must be satisfied that the
person is a fit and proper person.
Regulation 3.345 Annual reports
In addition to any other reporting requirements set out in the Regulations, the
holder of a multiple permit is also required to comply with the additional
annual reporting requirements set out in this regulation. The regulation sets
out the information that the holder of the permit is required to submit to the
Department of Agriculture, Fisheries and Forestry about the imports and exports
made under the relevant permit and also requires that the report be submitted
by the end of February each year.
Regulation 3.350 Period of validity and renewal of permit
The regulation provides that a multiple permit is valid until the next
occurring 31 March. This mean that a permit granted under this Division is
valid for up to a year. The regulation provides that a multiple permit holder
may apply to renew a permit. The application for renewal must be lodged not
more than 60 days before the permit expires. Before granting an application for
renewal, an authorised officer must be satisfied that the holder:
(a) had not contravened the permit;
(b) had complied with any conditions specified in the
permit;
(c) continued to be a fit and proper person for the
purposes of a multiple exit export permit to parties to the Rotterdam
Convention;
(d) had complied with the annual reporting
requirements in regulation 3.345.
Division 3.8 CONDITIONS OR RESTRICTIONS OF PERMISSIONS OR MULTIPLE
PERMITS
Regulation 3.405 Conditions
The regulation provides that a permission or multiple permit may specify
certain conditions or requirements that must be met by the holder of the
permission or multiple permit and the timeframe in which the holder must comply
with those conditions or requirements. The timeframe specified may require the
holder to comply with a condition before or after the act permitted.
Regulation 3.410 Revocation etc of permission or multiple permit
The regulation provides that an authorised officer may revoke, vary or suspend
a permission or multiple permit. If a decision is made to revoke, vary or
suspend a permission or multiple permit, the authorised officer must notify the
holder of the permission or multiple permit of that decision in writing within
10 days of the making of the decision. A notice issued under the regulation
must provide a statement advising the person that they are entitled to apply to
the Minister for a review of such a decision. Subregulation 3.410(4) provides
that a failure of an authorised officer to give written notice within the
timeframe given or to provide a statement on review rights does not affect the
validity of the revocation, variation or suspension.
Division 3.9 REVIEW OF DECISIONS
Regulation 3.505 Notice of authorised officer's decision
The regulation requires an authorised officer to provide notice in writing to
an applicant for a permission or multiple permit within 10 days of making a
decision. This means that all decisions about applications must be notified to
an applicant. Subregulation 3.505(2) provides that in circumstances where a
decision is made to refuse the application, the notice must include a brief
statement of the reasons to refuse the application and a statement that the
applicant may request the Minister to review the decision. Subregulation
3.505(3) provides that if the notice does not include the required statements,
that does not affect the validity of the decision.
Regulation 3.510 Reconsideration of decisions by Minister
The regulation allows an applicant to request the Minister to review a decision
to refuse an application notified to the applicant under subregulation
3.505(1). An applicant is required to lodge an application for review with the
Minister within 15 days of the applicant receiving the notice of refusal.
Subregulation 3.510(3) allows the Minister to grant or refuse a permission or
multiple permit; vary or affirm a decision on revocation, variation or
suspension; or to set aside and substitute a decision to revoke, vary or
suspend a permission or permit.
Regulation 3.515 Notice of Minister's decision
The regulation provides that the Minister must provide the applicant with
written notice of the Minister's decision within 10 days of making the
decision. If the Minister decides to refuse the application, then the notice
given by the Minister must include a statement advising the applicant that the
applicant may apply to the Administrative Appeals Tribunal for review of the
decision. The regulation also provides that if the notice does not include the
required statement that does not affect the validity of the decision.
Regulation 3.520 Review of decisions by AAT
The regulation provides that an application may be made to the Administrative
Appeals Tribunal in respect of a decision to refuse to grant a permission after
reconsideration by the Minister.
Item [5] Regulation 3A. heading
Item 5 provides that the heading for Regulation 3A in the Principal Regulations
is substituted with "3.550 Export of chemical products - fees for
certificates".
Item [6] Before regulation 4
A new Part 4 heading "Miscellaneous" is inserted into the Principal Regulations
before regulation 4 in line with other amendments in the Regulations that
separate the Principal Regulations into different Parts.
Item [7] Regulations 4 and 5
Item 7 renumbers regulations 4 and 5 in the Principal Regulations to
regulations 4.10 and 4.15 respectively as a consequential change to Item 6.
Item [8] Before the Schedule
A new schedule, "Schedule 1 Chemicals", is inserted before the existing
Schedule to the Principal Regulations.
Part 1 Reading this Schedule
Clause 1 to Part 1 of Schedule 1 describes how to read the Schedule 1. For each
chemical, Schedule 1 contains a small table that:
(a) gives the common name of the chemical;
(b) gives the chemical's IUPAC name (as defined);
(c) gives the chemical's CAS number (as defined);
(d) states whether the chemical is a prescribed
active constituent or prescribed chemical for the purposes of subsection
69CA(2) of the Act;
(e) for the purposes of subsection 69CA(3) of the
Act, identifies the relevant international agreement to which the chemical is
subject. A note indicates that a relevant international agreement under which
prohibitions are made may be identified; and
(f) states any conditions or restrictions that apply
to that chemical.
Clause 2 to Part 1 of Schedule 1 confirms that a reference in these Regulations
to a relevant item in this Schedule includes a chemical product that contains
the active constituent dealt with in the item.
Part 2 Chemicals
Part 2 of Schedule 1 lists the chemicals that are subject to the two
international agreements that are prescribed for the purposes of the
Regulations, i.e. the Stockholm Convention and the Rotterdam Convention. The
listing of the chemicals is alphabetical.
A number of chemicals are subject to both the Stockholm Convention and the
Rotterdam Convention. For those chemicals, the relevant item in Schedule 1
identifies the Stockholm Convention as the relevant Convention for the purposes
of subsection 69C(1) of the Act because the controls imposed under that
Convention are more stringent than those imposed under the Rotterdam
Convention.
Schedule 2-5
A new heading "Schedule 2-5" is inserted into the Principal Regulations. These
Schedules are resented for future use.
Item [9] schedule, heading
Item 9 substitutes the heading "Schedule" in the Principal Regulations with
"Schedule 6 Form of search warrant". The reference to regulation 5 is replaced
with a reference to regulation 4.15 as a consequence of the numbering changes
in the Regulations.