Opportunity to remove unnecessary regulatory burden
Drafting the meat rules provides an opportunity to remove unnecessary regulatory burden.
The draft meat rules set out the operational requirements that meat producers and exporters must meet to export their product. They are based on the current export legislation for meat and meat products.
Future iterations of the draft meat rules will incorporate the outcomes of current reforms and accommodate future reforms, as required.
Policy changes proposed in the submissions, such as the expanded use of third party providers and changes to official marks, are outside the scope of this project. They will require industry support, agreement by trading partners (where appropriate) and policy approval, before they can be incorporated into the rules.
Improvements to the export legislation will not impact Australia’s commitment to meet importing country requirements.
Consolidate and harmonise the administrative arrangements across the various commodity rules as much as possible to reduce government administrative costs across all commodities.
The Export Control Bill 2019 (the Bill) has consolidated and harmonised application and decision making processes for a range of the regulatory controls that are currently in the various Export Control Orders. This includes processes relating to accredited properties, registered establishments, approved arrangements, export licences, certificates and export permits.
The Bill has also standardised the terminology used for the regulatory controls that apply to all commodities.
The wording of provisions in the commodity-specific rules is also being harmonised, where appropriate, and common provisions consolidated where possible.
We anticipate that the improvements to the legislation will create future opportunities to reduce the administrative burden on exporters as well as create efficiencies for government. They will facilitate the development of harmonised IT systems, forms, and instructional training material for industry and government alike.
Drafting the meat rules is an opportunity to enable the adoption of new practices, processes and technology that will create opportunities for increase food exports.
The package of new export legislation will provide a more flexible framework that will allow the Australian government and industry to respond in an appropriate and timely manner to issues and opportunities as they arise.
Negotiating new market access, establishing new protocols or adopting new technologies are outside the scope of this project. However, under the Export Control Bill 2019, the Secretary of the Department of Agriculture will be able to make and change rules. This will make it easier for the legislation to be updated to reflect changes in requirements negotiated with trading partners.
Clear and unambiguous legislation
This is an opportunity to ensure the legislation is clear and unambiguous. This will make it easier for users to understand what is required and implement export requirements.
The wording of a number of specific provisions require further consideration.
In keeping with the feedback, various parts of the draft meat rules will be reformatted and restructured to make the rules easier to read and use. This includes inserting more sub-headings, rearranging some provisions and reviewing the wording of the provisions to ensure they are as clear as possible.
We have reviewed each provision mentioned in the submissions. Where appropriate, the provisions will be amended to ensure their meanings are clear and accurate.
More notes will be inserted to help readers to understand the relevant provisions to provide examples and to refer them to relevant parts of the Export Control Bill 2019 and systems such as Australian Meat Industry Classification System and MiCOR.
Provisions will also be deleted or added where necessary to ensure the meat rules are fit for purpose and correct.
Include as many notes as possible to assist the people reading the legislation. Also consider restructuring and reformatting some requirements to make them clearer.
We will add additional notes. Where possible, the draft meat rules will be restructured to remove any ambiguity.
Clear and consistent definitions
The definitions in the draft meat rules need to be consistent with the Australian Standard AS4696:207 (Australian Meat Standard) and with industry practice.
The draft meat rules take a similar approach to the existing Export Control (Meat and Meat Products) Orders 2005 in regard to defining terms.
Where it is appropriate and applicable to products for export, terms in the draft meat rules are defined as having the same meaning as in the Australian Meat Standard.
Some terms are defined in full within the draft meat rules, while some are defined as having the same meaning as in the Australian Standard AS4696:207 (Australian Meat Standard). A consistent approach should be adopted.
Where a term is not defined in the Australian Meat Standard, or where changes to a term are required for export purposes, the draft meat rules will define the term in full. Where a term is not defined, the ordinary meaning of the term applies.
The definition of critical non-compliance is too broad. Some terms require further consideration.
We agree that the definition of ‘critical non-compliance’ is too broad. We will revise it to make it consistent with the existing Export Control Orders.
We are reviewing the other terms to ensure they are clear and correct.
The draft meat rules should also include new definitions arising from reforms to the current export legislation.
The draft meat rules will incorporate the outcomes of current reforms and will accommodate any future reforms, as required. This includes the new definitions of lamb, mutton, ram and grain fed finished that have been incorporated into the Export Control (Meat and Meat Products) Orders 2005.
Modification and incorporation of Australian Standard AS4696:207 (Australian Meat Standard)
The draft meat rules need to recognise any changes made to the Australian Meat Standard, from time to time.
Subclause 432(3) of the Export Control Bill 2019 enables the Export Control Rules to incorporate matters in a few specified documents as in force or existing from time to time. These are documents that are changed on a regular basis, such as Australian Fish Names Standard.
The draft meat rules can only apply, adopt or incorporate any matter contained in any other standards or documents, such as the Australian Meat Standard, as they existed at the point of time in which the rules were made. This is because the Legislation Act 2003imposes restrictions on the incorporation of documents as in force or existing from time to time. A legislative instrument, such as the rules, can only apply, adopt or incorporate matters in documents as in force or existing from time to time if there is no contrary intention.
Any modifications to the standards, or any proposed alternative techniques, should not be implemented without agreement of the Australian Meat Regulators Group.
Consistent with current practice, modifications to the standards, or any proposed alternative technique, will not be implemented until the appropriate processes are followed for such amendments. This includes consulting with the Australian Meat Regulators Group, in which the department plays a role.
Clause ME-08 of the draft meat rules sets out the circumstances in which alternative procedures, standards or other requirements are taken to meet the requirements of the Australian Standard AS4696:207 (Australian Meat Standard).
Incorporation of state and territory requirements
The draft meat rules should include requirements and conditions to hold and maintain relevant licences or accreditations under state and territory legislation.
This does not form part of the regulatory controls in the current export legislation for meat, so it has not been included in the draft meat rules. Any change to current legislation would require broad support from all stakeholders and policy authority from the Australian Government.
Where possible, we establish arrangements with state and territory bodies so that farmers, exporters and industry are not regulated beyond what is required, and minimises unnecessary burden.
It would be more consistent to refer to the use of a National Livestock Identification System (NLIS) tag rather than just an identification tag.
The NLIS is Australia’s system for the identification and traceability of cattle, sheep and goats. It is underpinned by state or territory government legislation, which forms the regulatory framework for the NLIS.
Identification tags referred to in the draft meat rules apply to all species covered by these rules (and not just cattle, sheep and goats). As such, it would not be appropriate to require the specific use of the NLIS tags in all cases.
10kg limit for small export consignments
The current 10kg limitation for non-prescribed meat and meat products is too restrictive. It should be extended to incorporate a 25kg limitation for meat or meat products for export in a non-commercial consignment for use as display at trade fairs, exhibitions, or for evaluation.
Paragraph ME-09(3)(g) of the draft meat rules states that meat or meat products for export in a consignment of not more than 10kg are not prescribed goods. This has the same effect as order 14 of the Export Control (Meat and Meat Products) 2005.
If a consignment of more than 10kg is sought to be exported for certain specified purposes, an exporter can apply for an exemption from the prescribed export conditions.
For example, an exemption may be granted in circumstances where the goods are exported as a commercial sample, for experimental purposes, in exceptional circumstances, or in other circumstances as prescribed by the rules.
An exemption may be granted if the Secretary is satisfied that the exemption is appropriate and that any requirements of the rules are met.
Changing the 10kg weight limit is outside the scope of this project.
Variation of approved arrangements and registered establishments
The process for applying for and approving a variation to approved arrangements and establishments needs to be made clear.
The Export Control Bill 2019 and draft meat rules set out requirements to vary an approved arrangement or vary the registration of an establishment. There are different requirements depending upon who wants to make the variation and, for approved arrangements, whether or not the proposed variation is minor or significant. The requirements are similar to those in the existing Export Control (Meat and Meat Products) Orders 2005.
We are looking at how applications for making significant variations to an approved arrangement will be made and actioned.
Audits and assessments
The current process covered in Part 15 of the draft meat rules does not accurately reflect current practice. The term ‘audit’ needs to be more clearly defined and the draft meat rules need to be clear on whether or not verification activities are covered under the audit provisions.
Audits and assessments need to be discussed further, clarified and amendments made to the draft meat rules, if necessary.
Audits and assessments both play important roles in maintaining the integrity of Australia’s export system.
We are reviewing this part of the draft meat rules to ensure the provisions are correct and the distinction between assessments of goods and audits is clear. We will consult further, including with consultative committees, if needed.
The ability to set expiry dates and the requirement to renew (including the period to renew) is new. This has the capacity to increase charges through implementation.
There are some expiry dates for meat and meat products in the current export legislation. For example, the first accreditation of a EUCAS farm expires after 12 months, and the registration of an establishment expires 12 months after the approved arrangement ceases.
We have no intention to introduce additional expiry dates for regulatory controls that apply to meat and meat products.
Including rules that enable the Secretary to set an expiry date and specify timeframes for applying and considering renewals ‘future proofs’ the legislation. No amendments will be needed if expiry dates need to be set in the future.
Existing dates for existing accreditations, approved arrangements and licences will not be affected by the commencement of the new legislation. For example, an accreditation that is due to expire on 30 June 2021 under the current legislation will still expire on 30 June 2021 under the new legislation.
Under the draft meat rules, expiry dates will be determined on a case by case basis. Where an expiry date has been set, an application to renew the accreditation of a property, a registration of an establishment or an approved arrangement, must be made within 60 to 120 days of the accreditation expiring. This is to give us a minimum of 60 days to consider the renewal application.
Timely decision making
Time limits for specific response times may not be in line with customer expectations.
Under the Export Control Bill 2019, the draft meat rules must set timeframes for the Secretary (or a delegate) to make certain decisions in relation to accredited properties, registered establishments, approved arrangements and export licences.
The proposed consideration periods in the draft meat rules are still under consideration. Feedback on the proposed timeframes is welcome.
Authorised officers and reviewable decisions
Make as many powers and functions subject to review to improve transparency and accountability. The exercise of all directions powers should be reviewable.
Authorised officers’ powers to issue directions are an important regulatory tool.
A direction given by an authorised officer is not a reviewable decision. Only certain decisions made by the Secretary (or a delegate/subdelegate) are reviewable. It would not be practical for directions to be reviewable because, in most instances, a direction requires a person to take action within a specified period of time. Directions may operate for such a short period that they would need to be complied with before the direction can be reviewed.
If a person does not comply with a direction, we may take administrative action, such as make a decision to vary, suspend or revoke. These decisions are subject to merits review.
Although internal review of a direction given by an authorised officer is not available under the Export Control Bill 2019 (the Bill), a person can seek judicial review in the Federal Court under the Administrative Decisions and Judicial Review Act 1997.
The power to give directions is subject to limitations. For example, a direction under section 305 of the Bill can only be given on specific grounds and the direction must be given in writing (or followed up in writing). The direction cannot be to stop export operations unless there is no alternative. A direction can only be given by an authorised officer who has been authorised to exercise that power in their instrument of authorisation.
Sharing information on critical non-compliance with the state or territory governments
The Secretary and authorised officers should be required to notify relevant state or territory controlling bodies of an entity’s critical non-compliance.
The Export Control Bill 2019 (the Bill) provides us the ability to share information with other Australian government agencies and state and territory governments to enhance the integrity of the export and biosecurity system, and support stronger compliance and enforcement functions.
Information about a critical non-compliance that is obtained under or in accordance with the Bill would fall within the definition of ‘protected information’ under the Bill, and therefore could be disclosed to an officer of a state or territory body for a ‘secondary permissible purpose’.
- A secondary permissible purpose is achieving the objects of the Bill or administering or enforcing another Australian law that relates to public health, food safety or other specified matters.
The handling and sharing of protected information could be implemented through relevant administrative arrangements between us and the relevant state and territory controlling body. As such, a requirement to notify relevant state and territory bodies is not needed.
Additionally, disclosure of the information under the Bill and rules is discretionary, rather than mandatory.
Cost to government
How is this project being funded?
We are developing the improved legislation within existing resources. We have also set aside a specific budget for departmental implementation activities.
Cost to industry
The cost implications of the proposed regulatory changes to industry, particularly at implementation, have not been quantified or supported. There seems to be more bureaucracy involved in the process requirements. It is imperative that costs do not become even more burdensome.
We have prepared and released a Regulatory Impact Statement for public consultation with the draft Export Control Bill in 2019. It identifies a net reduction in the regulatory burden for businesses of $0.388 million per year.
We are looking at what needs to be done to implement the legislation, and to minimise any impost on industry arising from the transition to the new legislation, where possible. This includes how it will process applications and administer consideration periods.
What impact will be there be on the cost-recovery program?
Export legislation provides the authority for the Australian Government to recover costs for export regulatory activities.
Powers of the Secretary of the Department of Agriculture
The Secretary of the Department of Agriculture has the power to make or change rules. Industry consultation mechanisms must apply and there must be limitations for the scope and exercise of these powers.
The Export Control Bill 2019 enables the Secretary to make rules (and changes to the rules) for technical and operational reasons to ensure the export legislation operates as intended. This is similar to the Secretary’s power to make orders under the Australian Meat and Live-Stock Act 1997.
This will allow the Australian Government to be more responsive to changing market conditions and importing country requirements, as well as the uptake of innovation within the industry, without undue delay.
The Secretary will need to comply with the ordinary processes of government in making rules, including obtaining appropriate authority for changes in policy and undertaking relevant regulatory impact analysis. Appropriate and reasonable consultations with stakeholders will need to be undertaken.
The rules are legislative instruments, and will therefore be subject to parliamentary scrutiny and disallowance, like the current Export Control Orders.
Ministerial power to issue directions
The power of the Minister has the ability to undermine the independence/impartiality of the Public Sector.
More clarity is needed regarding the role of the Minister in decision-making processes
The Export Control Bill 2019 (the Bill) will enable the Minister to give directions to the Secretary of the Department of Agriculture in relation to the performance of his or her functions, or the exercise of his or her powers in making rules. A direction from the Minister may require the Secretary to take certain things into account when making rules.
Such ministerial directions are legislative instruments but they will not be subject to Parliamentary disallowance or sunset. This is because:
- Ministerial directions are not rules in and of themselves.
- Rules made by the Secretary (including those made following a ministerial direction) are subject to disallowance and sunsetting. So, while the direction is a mechanism for oversight, it is not duplicative.
The Minister will not be able to give directions to the Secretary about a decision on a particular application made under the Bill. For example, the Minister will not be able to direct the Secretary to register, or refuse to register, an establishment.
This approach strikes the right balance between ministerial and parliamentary oversight while also allowing flexibility and responsiveness to changing importing country and industry requirements.
The ministerial directions power does not limit the discretion of future governments to set their own policy agendas. Ministerial directions can be amended or revoked by subsequent ministers by relying on section 33(3) of the Acts Interpretation Act 1901. Such amendments or revocations would be legislative instruments but would not be subject to Parliamentary disallowance.
It is unclear how the proposed regulations will be supported through the transition period.
We are developing legislation that will enable regulatory controls in the existing legislation to transition, where possible. For example, existing registrations and approvals will carry across to the new framework when it commences. This will be done via the Export Control (Consequential Amendments and Transitional Provisions) Bill 2019 (PDF, 873 KB) and related provisions in Export Control Rules.
It is unclear what may be communicated to importing countries.
We have obligations as a World Trade Organisation member to advise trading partners of changes to import and export matters, including legislation.
Trading partners have therefore been advised that the Australian government is improving its agricultural export legislation and has been kept informed of progress updates through WTO notifications and at other opportunities, such as at bilateral and multilateral meetings.
Trading partners can read the draft rules that are available on the department’s website and will be consulted on the full suite of rules once exposure drafts have been developed.
Trading partners are being assured that existing levels of government oversight and regulatory powers will be maintained.
There is uncertainty regarding the significant technical work that will be required to update thousands of health certificates and other documentation.
The Export Control (Consequential Amendments and Transitional Provisions) Bill 2019 will provide for continued recognition of export permits and certificates, licences, approved arrangements and registered establishments issued or approved under the Export Control Act 1982.
We have already commenced work on updating certificates and other documentation.
Trading partners are being engaged to ensure they are aware of changes, including changes to legislative references in export documentation and have the opportunity to raise any concerns.