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2004 - 2005 - 2006 - 2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION)
AMENDMENT BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of the Parliamentary Secretary to the Minister for Agriculture,
Fisheries and Forestry, the Hon Sussan Ley MP)
AGRICULTURAL AND VETERINARY CHEMICALS (ADMINISTRATION)
AMENDMENT BILL 2007
OUTLINE
The objective of the Agricultural and Veterinary Chemicals (Administration) Amendment
Bill 2007 is to amend the Agricultural and Veterinary Chemicals (Administration) Act 1992
to give effect to the Government's decision, following on from the Review of the Corporate
Governance of Statutory Authorities and Office Holders ("the Uhrig Review") of June 2003,
to alter the governance arrangements for the Australian Pesticides and Veterinary Medicines
Authority ("the APVMA") from a board structure to an executive management structure.
The APVMA will continue to be a statutory authority of the Commonwealth constituted
under the Agricultural and Veterinary Chemicals (Administration) Act 1992 ("the
Administration Act"), with separate legal identity from the Commonwealth. The Authority
retains the power to enter into contracts; acquire, hold and dispose of real and personal
property; occupy land; appoint agents and attorneys; and do anything incidental to its powers
as is currently the case. By these amendments, however, the assets and liabilities of the
APVMA become assets and liabilities of the Commonwealth.
The APVMA will become subject to the provisions of the Financial Management and
Accountability Act 1997, rather than the Commonwealth Authorities and Companies Act
1997. Staff of the APVMA will be persons engaged under the provisions of the Public
Service Act 1999 rather than persons employed under the Administration Act.
The APVMA will be constituted by an executive manager, the Chief Executive Officer ("the
CEO"), who will manage the Authority. Under the previous arrangements, the APVMA was
constituted by a governing board. However, an Advisory Board, consisting of up to nine
part-time members appointed by the Minister, is established by these amendments to provide
advice and make recommendations to the CEO.
The APVMA has responsibility for administering a joint Commonwealth and State and
Territory regulatory regime assuring the safety and effectiveness of agricultural and
veterinary chemical products throughout Australia. Under this joint regime, the
Administration Act expressly provides that the APVMA has "any functions that are
expressed to be conferred on it by a law of a State". Each of the States and the Northern
Territory have passed complementary legislation conferring identical functions and powers
on the APVMA. In this way a national and uniform legislative regime, administered by the
APVMA, for the management and regulation of agricultural and veterinary chemical
products has been established throughout Australia.
In developing these amendments to the structural constitution and governance of the
APVMA, particular care has been taken not to affect the continued existence of the body
corporate which is the APVMA and upon which State and Territory legislation has conferred
functions and powers, or to disturb the Commonwealth and State and Territory cooperative
arrangements underpinning the national regulatory scheme for agricultural and veterinary
chemicals.
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FINANCIAL IMPACT STATEMENT
The amendments in this Bill are not expected to have any financial impact on the
Commonwealth budget.
The APVMA operates on a full cost recovery basis, funded principally by levy on wholesale
sales of chemical products and fee for services rendered.
While these amendments make some changes to the financial arrangements for the APVMA
in that the APVMA is subjected to the provisions of the Financial Management and
Accountability Act 1997 rather than the Commonwealth Authorities and Companies Act
1997, the overall impact on the Commonwealth budget is expected to be nil.
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NOTES ON CLAUSES
Clause 1: Short Title
1. The short title of this Act is the Agricultural and Veterinary Chemicals
(Administration) Amendment Act 2007.
Clause 2: Commencement
2. This clause provides for the commencement of the Act. Subclause 2(1) provides that
each provision of the Act specified in column 1 of the table incorporated in that
subclause commences or is taken to have commenced on the day specified in column 2
of the table.
3. Item 1 of the table provides that sections 1 to 3 and anything not covered elsewhere in
the table commence on the day the Act receives the Royal Assent.
4. Item 2 of the table provides that Schedules 1 and 2 commence on 1 July 2007 if the
Act receives Royal Assent on or before that day; otherwise the Schedules commence
on a day to be fixed by Proclamation. However, if neither of the provisions commence
within the period of six months beginning from the day on which the Act receives the
Royal Assent, the Schedules commence the day after the end of that period.
Clause 3: Schedule(s)
5. This clause provides that each Act specified in a Schedule is amended or repealed as
set out in the Schedule, and any other item in a Schedule has effect according to its
terms. There are two Schedules to this Act - one amending the Agricultural and
Veterinary Chemicals (Administration) Act 1992; and the other containing application
and transitional provisions.
Schedule 1--Amendment of the Agricultural and Veterinary Chemicals
(Administration) Act 1992
Item 1: Section 4
6. Item 1 inserts a new definition for Advisory Board. This definition is required as part
of the change in governance arrangements for the APVMA which will have an
Advisory Board rather than the previous governing board. The term is defined to mean
the Advisory Board of the APVMA established by section 14.
Item 2: Section 4
7. Item 2 inserts a new definition for Board member. This definition is required as part of
the change in governance arrangements for the APVMA which will have an Advisory
Board rather than the previous governing board. The term is defined to mean a
member of the Advisory Board of the APVMA appointed in accordance with the new
section 17 of the Administration Act and includes the Chair.
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Item 3: Section 4
8. Item 3 inserts a new definition for Chair. This definition is required as part of the
change in governance arrangements for the APVMA which will have an Advisory
Board rather than the previous governing board. The term is defined to mean the Chair
of the Advisory Board.
Item 4: Section 4 (definition of Chairperson)
9. Item 4 repeals the definition of Chairperson. The Chairperson was the chair of the
outgoing governing board of the APVMA.
Item 5: Section 4
10. Item 5 inserts a new definition for Chief Executive Officer. This definition is required
as part of the change in governance arrangements for the APVMA whereby an
executive manager will replace the previous governing board. The term is defined to
mean the Chief Executive Officer appointed in accordance with section 33.
Item 6: Section 4 (definition of Deputy Chairperson)
11. Item 6 repeals the definition of Deputy Chairperson. The Deputy Chairperson was the
deputy chair of the previous governing board of the APVMA.
Item 7: Section 4 (definition of director)
12. Item 7 repeals the definition of director. A director was a member of the previous
governing board of the APVMA.
Item 8: Section 4 (paragraph (a) of the definition of member of the staff)
13. Item 8 repeals the existing paragraph (a) of the definition of member of staff and
substitutes "a person referred to in subsection 45(1); or". Subsection 45(1) [see item
46] now refers to staff of the APVMA being persons engaged under the Public Service
Act 1999.
Item 9: At the end of subsection 7(3)
14. Item 9 adds a note to the end of subsection 7(3) to the effect that, in relation to
paragraph (a), the Chief Executive Officer may also enter into contracts on behalf of
the Commonwealth pursuant to section 44 of the Financial Management and
Accountability Act 1997. Subsection 7(3) retains the provision that the APVMA has
power to do all things necessary or convenient to be done in connection with the
performance of its functions and, in particular, may enter into contracts.
15. As noted in the outline to this Explanatory Memorandum, by subsection 7(3) of the
Administration Act, the APVMA has retained its existing powers, including the power
to contract in its own name (see paragraph (a)). To establish the national cooperative
scheme for the management of agricultural and veterinary chemicals in Australia, each
of the States and Northern Territory have adopted complementary laws conferring
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identical powers on the APVMA. These national arrangements would be jeopardised
should the existing powers of the APVMA be changed. In addition, the APVMA
routinely enters into contracts in its own name in the conduct of its business,
particularly with States and Territories and other agencies for the provision of
scientific assessments and advice. In this context, the APVMA's continued ability to
enter into contracts in its own name is vital. The functions and powers are conferred
on the APVMA body corporate. To confer these functions and powers on the CEO
would require a change to State and Territory laws.
Item 10: After section 7
16. Item 10 inserts new sections 7AA and 7AB, which respectively provide that the
APVMA's assets are Commonwealth assets and APVMA liabilities are
Commonwealth liabilities. Previously, the assets and liabilities of the APVMA were
held in its own right, however such assets and liabilities now become those of the
Commonwealth by virtue of the APVMA's transition to the Financial Management
and Accountability Act 1997.
17. New subsection 7AA(1) provides that any real or personal property held by the
APVMA is held for and on behalf of the Commonwealth.
18. New subsection 7AA(2) provides that any money received by the APVMA is held by
the APVMA is held for and on behalf of the Commonwealth.
19. New subsection 7AA(3) provides that the APVMA cannot hold real or personal
property on trust. A note to the provision observes that the Commonwealth may hold
real or personal property or money on trust.
20. New subsection 7AA(4) provides that, to avoid doubt, paragraph 7(3)(b) is subject to
subsection (3) of this section. Paragraph 7(3)(b) retains the provision that the APVMA
has power to do all things necessary or convenient to be done in connection with the
performance of its functions and, in particular, may acquire, hold and dispose of real
and personal property. The effect of the new subsection is that, although the APVMA
may acquire, hold and dispose of real and personal property, the APVMA cannot hold
such property on trust.
21. New subsection 7AA(5) provides that, to avoid doubt, a right to sue is taken not to be
personal property for the purposes of subsection (1). Paragraphs 12(1)(a), (b) and (c)
provide that the APVMA is a body corporate with perpetual succession, is to have a
common seal and may sue and be sued in its corporate name. The effect of the new
subsection is that the APVMA's right to sue is not considered to be personal property.
22. New subsection 7AB(1) provides that any financial liabilities of the APVMA are taken
to be liabilities of the Commonwealth.
23. New subsection 7AB(2) defines, for the purposes of section 7AB, financial liability to
mean a liability to pay a person an amount if the amount, or the method for working
out the amount, has been determined.
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Item 11: At the end of section 8
24. Item 11 adds new subsection 8(3), which removes any doubt that the APVMA does not
consult the new Advisory Board for the purposes of section 8 when the CEO requests
advice from the Advisory Board.
25. This clarification seeks to maintain existing arrangements. Pursuant to section 34G of
the Agvet Code, the APVMA is required to publish a summary of the advice it receives
from a person, body or government it consulted under sections 8 or 8A of the
Administration Act, if it relied on that advice to make a decision under the Agvet Code
to grant an application for registration or approval. However, the APVMA is currently
not required to publish a section 34G summary in respect of advice the CEO receives
from the APVMA governing board. To statutorily require the CEO to publish a
summary of advice received from the Advisory Board would add significantly to
APVMA costs and would further extend registration and approval timeframes.
Item 12: Paragraph 10(2)(c)
26. Item 12 omits the word "Chairperson" and substitutes "Chief Executive Officer" in
paragraph 10(2)(c). The amendment is required as part of the change in governance
arrangements for the APVMA whereby an executive manager (the CEO) will replace
the previous governing board so that a reference to the previous Chairman of the
governing board in paragraph 10(2)(c) should now be to the CEO. Paragraph 10(2)(c)
requires the Minister to give the head of the organisation adequate opportunity to
discuss the need for any proposed direction to the APVMA from the Minister.
Item 13: Subsection 10(5)
27. Item 13 repeals the existing subsection 10(5) and substitutes a new subsection that
provides that a direction under subsection 10(1) is not a legislative instrument.
28. Section 10 retains the power of the Minister to give directions to the APVMA in
relation to certain things. The section also requires that if the Minister does give a
direction, the Minister must gazette a notice setting out the particulars of the direction
(that is, all the details) and table that notice before each House of Parliament. Section
10 has the same effect as the Legislative Instruments Act 2003, which requires a copy
of the actual direction to be published and tabled. Were a copy of the direction to be
gazetted and tabled, the requirements of subsection 10(3) would be satisfied.
29. However, section 10 also provides that the Minister may determine in writing that the
gazettal and tabling of certain directions would prejudice the national interest of
Australia. No such discretion would be available under the Legislative Instruments Act
2003. As such a discretion may be of particular importance with emerging issues such
as the management of security chemicals, the Government has decided that a
Ministerial Direction under subsection 10(1) should continue to not be a legislative
instrument for the purposes of the Legislative Instruments Act 2003.
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Item 14: After section 10
30. Item 14 inserts new section 10A that provides, so as to avoid any doubt, that the
general power of the Minister to give directions to the APVMA in relation to certain
things pursuant to section 10, does not empower the Minister to direct the CEO in
relation to the CEO's performance of functions, or exercise of powers, under the
Financial Management and Accountability Act 1997 or as an Agency Head under the
Public Service Act 1999.
31. As such, while the Minister has certain powers to direct the APVMA concerning the
performance of its functions or the exercise of its powers, as the APVMA now consists
of the CEO, the Minister cannot direct the CEO in relation to powers and functions
granted generally to agency heads by the Financial Management and Accountability
Act 1997 and the Public Service Act 1999.
Item 15: Paragraph 11(1)(a)
32. Item 15 repeals paragraph 11(1)(a).
33. Paragraph 11(1)(a) allowed the APVMA to delegate, in writing, all or any of its powers
and functions to a director of its governing board. As a result of the change in
governance arrangements for the APVMA there will be an Advisory Board rather than
the previous governing board. Consequently, the provision is no longer appropriate.
Item 16: Part 3 (heading)
34. Item 16 repeals the heading of Part 3 that referred to the constitution and meetings of
the APVMA and substitutes it with "Part 3--Constitution of APVMA and Advisory
Board".
Item 17: Before section 12
35. Item 17 inserts, before section 12, the new heading "Division 1--Constitution of the
APVMA".
Item 18: Subsection 12(1) (note)
36. Item 18 deletes the note in subsection 12(1) that the Commonwealth Authorities and
Companies Act 1997 applies to the APVMA. As the APVMA is now to be subject to
the Financial Management and Accountability Act 1997 the note is no longer
appropriate.
Item 19: Section 13
37. Item 19 repeals section 13, which related to the constitution of the APVMA and
substitutes a new section.
38. New subsection 13(1) provides that the APVMA consists of the CEO. The APVMA
previously consisted of a Chairperson and eight other directors (the governing board)
and is now to consist of an executive manager, the CEO.
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39. New subsection 13(2) provides that a performance of a function or the exercise of a
power of the APVMA is not affected by a vacancy in the office of the CEO.
Item 20: After section 13
40. Item 20 inserts, after section 13, the new heading "Division 2--The Advisory Board".
Item 21: Sections 14 to 19
41. Item 21 repeals section 14 to 19, relating to the directors of the previous governing
board of the APVMA, and substitutes new sections relating to the Advisory Board.
42. New section 14 establishes the new Advisory Board of the APVMA.
43. New section 15 provides that the Advisory Board consists of up to nine Board
members.
44. New section 16 provides for the function of the Advisory Board.
45. Subsection 16(1) provides that the function of the Advisory Board is, on its own
initiative or at the request of the CEO, to provide advice and make recommendations to
the CEO in relation to the performance of a function or the exercise of a power of the
APVMA.
46. Subsection 16(2) provides that the Advisory Board has power to do all things
necessary or convenient to be done in connection with the performance of its function.
47. Subsection 16(3) specifies that the Advisory Board cannot give any directions
whatsoever to the CEO, including the CEO's performance of functions, or exercise of
powers, under the Financial Management and Accountability Act 1997 or as an
Agency Head under the Public Service Act 1999.
48. Section 17 provides for the appointment of members of the Advisory Board.
49. Subsection 17(1) provides that a Board member is to be appointed, by written
instrument, by the Minister on a part-time basis.
50. Subsection 17(2) provides that, when appointing Board members, the Minister must
ensure that two members have experience in the regulation of chemical products, under
State or Territory law; one member has experience in the agricultural chemical
industry and another in the veterinary chemical industry; one member has experience
in primary production; one member has experience in the environmental toxicology,
including knowledge of the effect of chemicals in ecosystems; one member has
experience in protecting consumer interests; one member has experience in public
health and occupational health and safety; and, if the Minister considers it necessary,
one member that has experience in a field relevant to the APVMA's functions.
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51. The expectation is that a member with experience in environmental toxicology would
be a person with high level scientific qualifications that would be able to provide
advice to the CEO in relation to the toxicity of constituents and their residues in
relation to relevant organisms and ecosystems; the toxicity of products and their
residues in relation to relevant organisms and ecosystems; and whether a chemical
product used as proposed would or would not be likely to have an unintended effect
that is harmful to animals, plants or things or to the environment.
52. The expectation is that a member with experience in public health and occupational
health and safety would be a person with suitable scientific qualifications that would be
able to provide advice to the CEO in relation to the toxicity of constituents and their
residues in relation to human beings; the toxicity of products and their residues in
relation to human beings; whether a chemical product used as proposed would or
would not be likely to have an effect that is harmful to human beings; and whether a
chemical product used as proposed would or would not be likely to be an undue hazard
to the safety of people exposed to it during its handling or people using anything
containing its residues.
53. The experiential make-up of the Advisory Board is similar to that of the previous
governing board, with the addition of experience in environmental toxicology,
experience in public health and the option of Ministerial discretion to add another
member with experience in a field relevant to the APVMA's functions. This
experiential make-up complements the role and responsibilities of the APVMA and
includes representation from each key stakeholder sector. The skills and experience
offered by the Advisory Board will assist to inform the CEO, which in turn is expected
to aid his or her discharge of the functions of the position.
54. Subsection 17(3) provides that the Minister must appoint one of the Board members to
be the Chair. The responsibilities of the Chair are detailed in section 21 (item 23) and
section 27 (item 28) and include the power to grant leave of absence for other Board
members, holding meetings of the Advisory Board (where necessary) and ensuring that
minutes of such meetings are kept. Noting the limited responsibilities of the Chair, the
establishment of a Deputy Chair has not been considered warranted.
55. Subsection 17(4) requires the Minister to consult the CEO before appointing a person
as a Board member or as the Chair. As it is the CEO who is intended to be assisted by
the advice of the Advisory Board, it is considered appropriate that the CEO be
consulted in relation to the appointment of a Board member or of the Chair.
56. Subsection 17(5) provides that a person's appointment as a Board member is not
invalid because of a defect or irregularity in connection with the person's appointment.
57. Section 18 provides that a Board member holds office for the period specified in the
instrument of appointment. That period must not exceed three years. A note to the
section observes that, pursuant to subsection 33(4A) of the Acts Interpretation Act
1901, a Board member is eligible for re-appointment.
58. Section 19 sets out the remuneration and allowances to be paid to Advisory Board
members.
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59. Subsection 19(1) provides that a Board member is to be paid such remuneration as is
determined by the Remuneration Tribunal but if no determination is in operation, the
member is to be paid such remuneration as is prescribed.
60. Subsection 19(2) provides that a Board member is to be paid the allowances as are
prescribed.
61. Subsection 19(3) provides that, if a person who is a Board member, is a member of
Parliament of a State or is a candidate for election to a Parliament of a State and would
not be eligible to be elected if the person were entitled to remuneration or allowances
under this Act; or is in full-time employment or service of a State or a State authority
or holds or performs the full-time duties of an office or position established by State
law, then the person must not be paid remuneration or allowances under this Act but is
to be reimbursed the expenses that the person reasonably incurs in performing duties
under this Act.
62. Subsection 19(4) provides that this section has effect subject to the Remuneration
Tribunal Act 1973.
63. Subsection 19(5) defines the words Parliament of a State and State for the purposes of
section 19. Parliament of a State, in relation to the Australian Capital Territory and the
Northern Territory respectively, means the Legislative Assembly for the Australian
Capital Territory and the Legislative Assembly of the Northern Territory. State
includes the Australian Capital Territory and the Northern Territory.
Item 22: Section 20
64. Item 22 repeals section 20 that provided that directors of the APVMA's previous
governing board may receive such other benefits as the Minister determines.
Item 23: Section 21
65. Item 23 repeals section 21 that allowed the Chairperson and directors of the previous
governing board to be granted leave of absence and substitutes a new section providing
for leave for the Chair and other Board members of the Advisory Board.
66. Subsection 21(1) provides that the Minister may grant leave of absence to the Chair on
the terms and conditions that the Minister determines.
67. Subsection 21(2) provides that the Chair may grant leave of absence to another Board
member on the terms and conditions that the Chair determines.
Item 24: Section 22
68. Item 24 repeals section 22 that provided for the resignation of directors of the previous
governing board and substitutes a new section allowing members of the Advisory
Board to resign.
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69. Subsection 22(1) provides that a Board member may resign by giving the Minister a
signed notice of resignation.
70. Subsection 22(1) provides that the Chair may resign his or her appointment as the
Chair without resigning his or her appointment as a Board member.
Item 25: Sections 23 and 24
71. Item 25 repeals sections 23 and 24 that respectively required directors to disclose
financial interests in certain circumstances and provided for the termination of
directors' appointments. Item 25 substitutes new sections 23 and 24, headed `Standing
obligation to disclose interests' and `Termination of appointment'.
72. Subsection 23(1) requires a Board member to give written notice to the Minister of any
of his or her direct or indirect financial interests if that interest could conflict with the
proper performance of the Advisory Board's function. Notice is required whether or
not there is any particular matter under consideration that gives rise to an actual
conflict of interest.
73. Subsection 23(2) provides that, for the purposes of subsection (1), it does not matter
whether the interest is acquired before or after the Board member's appointment.
74. Subsection 23(3) provides that the notice must be given to the Minister as soon as
practicable after the Board member becomes aware of the potential for conflict of
interest.
75. Subsection 24 provides that the Minister may terminate the appointment of a Board
member. This power is entirely discretionary.
Item 26: Section 25
76. Item 26 omits "director" and substitutes "Board member" in section 25 in relation to
terms and conditions of appointment of Board members not provided for by the
Administration Act. This amendment is required as part of the change in governance
arrangements for the APVMA which will have an Advisory Board rather than the
previous governing board.
Item 27: After section 25
77. Item 27 inserts, after section 25, the new heading "Division 4--Advisory Board
procedures".
Item 28: Sections 26 and 27
78. Item 28 repeals sections 26 and 27 that dealt with meetings of the APVMA and
substitutes new sections titled "Meetings between the Chief Executive Officer and the
Advisory Board" and "Meetings of the Advisory Board" that respectively provide
procedures for meetings between the CEO and the Advisory Board and meetings of the
Advisory Board.
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79. New subsection 26(1) provides that the CEO must hold sufficient meetings with the
Advisory Board as are necessary for the efficient performance of the APVMA's
functions. The intent of this provision is to ensure that the Advisory Board is engaged
in an appropriate manner without mandating or prescribing a requirement for meetings
where there are no relevant matters before the APVMA on which the advice and
recommendations of the Advisory Board would be beneficial. To mandate meetings in
such circumstances would be an inefficient use of public money.
80. New subsection 26(2) provides that meetings between the CEO and the Advisory
Board are to be held at times and places that the CEO determines. A note to the
provision observes that Section 33B of the Acts Interpretation Act 1901 provides that a
body may permit persons to participate in meetings, such as those referred to in the
new subsection 26(2), by telephone and other means of communication.
81. New subsection 26(3) provides that the CEO, or a person that the CEO directs, is to
preside at meetings between the CEO and the Advisory Board. The effect of this
provision is that it authorises the CEO or a person that the CEO directs to chair such
meetings.
82. New subsection 26(4) provides that the CEO may determine the procedure to be
adhered to at or in relation to meetings. The procedures include matters with respect to:
holding meetings; the quorum for meetings (including requirements that particular
Board members be present); and regulating the way in which meetings are conducted.
The intent of this provision is to ensure that the CEO has sufficient control of the
meetings that he or she holds with the Advisory Board in order to obtain the advice
that he or she requires in order to manage the affairs of the APVMA.
83. New subsection 26(5) requires the CEO to ensure that minutes of the meetings held by
the CEO with the Advisory Board are kept. The intent of this provision is to ensure
that there is a record of such meetings.
84. New subsection 26(6) provides that the Secretary, or a person authorised by the
Secretary, may attend meetings held by the CEO with the Advisory Board. The Uhrig
Review recommended that to assist an Advisory Board's considerations, particularly in
relation to the background of government policy and options for implementation, the
relevant portfolio Secretary should attend such meetings of the Advisory Board. The
intent of this provision is to give effect to this recommendation. It is anticipated that
the Secretary, or a person authorised by the Secretary, would be invited to attend these
meetings in a similar manner to that with which the members of the Advisory Board
are invited to attend.
85. New subsection 26(7) provides that the CEO may invite a person other than a Board
member or the Secretary to attend a meeting for the purpose of advising or informing it
on any matter. The provision also provides that the CEO may pay the expenses
incurred by the person in attending the meeting. The intent of this provision is to allow
the CEO to have persons with relevant knowledge attend Advisory Board meetings and
ensure that appropriate information is available to the Advisory Board for it to perform
its function. The persons the CEO may invite are not limited to APVMA staff and may
include anyone.
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86. New subsection 26(8) provides that if a member of the Advisory Board has a direct or
indirect financial interest that could conflict with the proper performance of the
Advisory Board's function in relation to a matter being considered, or about to be
considered at a meeting, then the Advisory Board member must disclose that interest to
the CEO as soon as practicable. The intent of this provision is to ensure that the CEO
is aware of any conflict of interest that may impinge on the advice provided by the
Advisory Board.
87. New subsection 26(9) requires that any disclosure made under subsection 26(8) and
any decision made by the CEO in relation to the disclosure must be recorded in the
minutes of the meeting. The intent of this provision is to ensure that there is a record
of any disclosures and the action taken in relation to them.
88. New subsection 26(10) provides that subsections 26(1) to 26(4) apply to hearings held
by the APVMA in the same way that those provisions apply to meetings held by the
CEO with the Advisory Board. Hearings of the APVMA are dealt with by section
69EP of the Administration Act. The intent of this provision is to define the role of the
Advisory Board in hearings held by the APVMA. Section 69EP is amended
correspondingly by item 53.
89. New subsection 27(1) provides that the Chair of the Advisory Board may hold such
meetings of the Advisory Board as are necessary for the efficient performance of the
Advisory Board's function. The effect of this provision is that it authorises the
Advisory Board to meet in the absence of the CEO. It is anticipated that such meetings
would be held for the purposes of the Advisory Board preparing its advice for the CEO
and that for efficiency, such meetings would generally be held just prior to meetings
held by the CEO under subsection 26(1). Meetings of the Advisory Board that do not
yield relevant advice and recommendations in relation to the performance of a function
or the exercise of a power of the APVMA would be considered to be in excess to that
which are necessary for the efficient performance of the Advisory Board's function.
90. New subsection 27(2) provides that, subject to subsection 27(4) [which requires the
Chair to keep minutes of the Advisory Board meetings], the CEO may determine
matters relating to the operation of the Advisory Board. It is envisaged that such
matters would include the quorum for meetings, the way in which meetings are
conducted, the location of meetings, the affairs to be discussed and any other matter
relating to the operation of the Advisory Board. The effect of the reference to
subsection 4 is that irrespective of how the CEO determines that the Advisory Board is
to operate, the Chair must ensure that minutes of the meetings of the Advisory Board
are kept.
91. New subsection 27(3) provides that, subject to subsection 27(4) [which requires the
Chair to keep minutes of the Advisory Board meetings], if no determination of the
CEO is in force as to how the Advisory Board is to operate, the Advisory Board may
operate in the way it determines. The intent of the provision is, where no
determination of the CEO is in effect, to allow the Advisory Board the freedom to
operate in whatever way it determines for its meetings for the efficient performance of
the Advisory Board's function. The effect of the reference to subsection 4 is that
irrespective of how the Advisory Board chooses to operate, the Chair must ensure that
minutes of the meetings of the Advisory Board are kept.
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92. New subsection 27(4) requires the Chair of the Advisory Board to ensure that minutes
of meetings of the Advisory Board are kept. The intent of this provision is to ensure
that a record of the meetings of the Advisory Board is kept.
93. New subsection 27(5) provides that if a member of the Advisory Board has a direct or
indirect financial interest that could conflict with the proper performance of the
Advisory Board's function in relation to a matter being considered, or about to be
considered at a meeting, then the Advisory Board member must disclose that interest to
the other Board members as soon as practicable. The intent of this provision is to
ensure that the other Board members are aware of any conflict of interest that may
impinge on the advice provided by the member with the conflict of interest, which may
in turn impinge on the proper function of the Advisory Board.
94. New subsection 27(6) requires that any disclosure made under subsection 27(5), and
any decision made by the Board in relation to the disclosure must be recorded in the
minutes of the meeting. The intent of this provision is to ensure that there is a record
of any disclosures and the action taken in relation to them.
95. New subsection 27(7) provides that the Chair of the Advisory Board may invite the
CEO to attend all or part of an Advisory Board meeting. It is envisaged that the Chair
may exercise this power in circumstances such as where the Advisory Board seeks a
briefing by the CEO on a particular matter or wishes the CEO to participate in a
discussion that the Advisory Board is to have. It is not intended that the CEO be
bound to attend meetings of the Advisory Board if invited to do so.
96. New subsection 27(8) provides that a determination made under subsection 27(2)
[which provides that the CEO may determine matters relating to the operation of the
Advisory Board] is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003. The effect of this provision is to exempt such directions of the
CEO from the requirements of the Legislative Instruments Act 2003, which would
require such directions to be registered and subject to Parliamentary scrutiny. Such
procedures would not be necessary or appropriate for directions of the CEO to the
Advisory Board in relation to the procedures for operating. Furthermore, such
directions would generally be considered to be of administrative character.
Item 29: Before section 28
97. Item 29 inserts, before section 28, a new heading "Division 5 - Committees".
Item 30: Subsection 28(2)
98. Item 30 omits "directors" and substitutes "Board members" in subsection 28(2), which
relates to the composition of committees of the APVMA. This amendment is required
as part of the change in governance arrangements for the APVMA which will have an
Advisory Board rather than the previous governing board.
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Item 31: After section 29
99. Item 39 inserts, after section 29, a new section "Remuneration and allowances of
committee members".
100. New subsection 29A(1) provides that a committee member (other than a Board
member) is to be paid such remuneration as is determined by the Remuneration
Tribunal but if no determination is in operation, the member is to be paid such
remuneration as is prescribed.
101. New subsection 29A(2) provides that a committee member (other than a Board
member) is to be paid the allowances as are prescribed.
102. New subsection 29A(3) provides that, if a person who is member of a committee, is a
member of Parliament of a State or is a candidate for election to a Parliament of a State
and would not be eligible to be elected if the person were entitled to remuneration or
allowances under this Act; or is in full-time employment or service of a State or a State
authority or holds or performs the full-time duties of an office or position established
by State law, then the person must not be paid remuneration or allowances under this
Act but is to be reimbursed the expenses that the person reasonably incurs in
performing duties under this Act.
103. New subsection 29A(4) provides that this section has effect subject to the
Remuneration Tribunal Act 1973.
104. New subsection 29A(5) defines the words Parliament of a State and State for the
purposes of this section. Parliament of a State, in relation to the Australian Capital
Territory and the Northern Territory respectively, means the Legislative Assembly for
the Australian Capital Territory and the Legislative Assembly of the Northern
Territory. State includes the Australian Capital Territory and the Northern Territory.
Item 32: Section 30
105. Item 30 omits "Chairperson of the APVMA" and substitutes "Chief Executive Officer"
in section 30, which relates to arrangements relating to the provision of staff and
facilities for committees of the APVMA. This amendment is required as part of the
change in governance arrangements for the APVMA which will have an Advisory
Board rather than the previous governing board (headed by the Chairperson of the
APVMA). The CEO is now to be responsible for the provision of any staff or facilities
for committees of the APVMA and any such request from the Chairperson of such a
committee therefore must be made to the CEO.
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Item 33: Subsections 32(1) and (2)
106. Item 33 repeals subsections 32(1) and 32(2), which related to the CEO's management
of the APVMA and exercise of powers of the APVMA, and substitutes a new
subsection. This amendment removes references to directions given by the APVMA
(meaning the previous governing board which constituted the APVMA). This
amendment is required as part of the change in governance arrangements for the
APVMA, where the governing board is disbanded and the CEO has sole responsibility
for the governance of the APVMA.
107. New subsection 32(1) provides that the CEO is to manage the affairs of the APVMA
and in doing so may exercise any of the powers and functions of the APVMA. This
provision reflects the adoption of the Executive Management model, with the CEO
having sole responsibility for the governance and operation of the APVMA.
Item 34: After section 32
108. Item 34 inserts, after section 32, the new section "Working with the Advisory Board"
which deals with the interaction between the CEO and the Advisory Board.
109. New subsection 32A(1) provides that the CEO, in performing the duties of the office,
must take into account the advice and recommendations provided by the Advisory
Board. The provision provides that this applies whether or not the advice and
recommendations were provided to the CEO in response to a request made by the CEO
for advice or not. The CEO is not bound by the advice and recommendations provided
by the Advisory Board. The new subsection 16(3) at item 21 provides that the
Advisory Board cannot give any directions to the CEO.
110. New subsection 32A(2) provides that the CEO must keep the Advisory Board
informed of the performance of the APVMA's functions and that the CEO must give to
the Advisory Board such documents and information in relation to the APVMA's
functions as the Chair of the Advisory Board requires to allow the Advisory Board to
execute its function. The functions of the APVMA are described by subsection 7(1A).
The intent of this provision is not that the Chair may obtain any and all documents or
information held by the APVMA, but rather only that which relates to the functions of
the APVMA and which would be required by the Advisory Board to perform its
function. The Chair is not entitled to request a document if it does not relate to the
APVMA's functions and is not necessary for the carrying out of the Advisory Board's
functions.
111. New subsection 32A(3) provides that the CEO may attend meetings of the Advisory
Board if invited by the Chair. The new subsection 27(1) at item 28 provides that
meetings of the Advisory Board may be held by the Chair as are necessary for the
efficient performance of the Advisory Board's function and the new subsection 27(7)
provides that the Chair may invite the CEO to such meetings. Such meetings are
distinct from those held by the CEO under the new subsection 26(1) at item 28.
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Item 35: Section 33
112. Item 35 repeals section 33 that related to appointment of the CEO and substitutes a
new section, "Appointment".
113. New subsection 33(1) provides that the CEO is to be appointed by the Minister by
written instrument, on a full-time basis.
114. New subsection 33(2) specifies that a person who is appointed as a member of the
Advisory Board is not eligible to be appointed as the CEO.
115. New subsection 33(3) provides that the CEO's appointment is not invalid because of a
defect or irregularity in connection with the person's appointment.
Item 36: Section 34
116. Item 36 omits the name "APVMA" and substitutes "Minister" in section 34, relating to
the term of the CEO's appointment. This amendment is required as part of the change
in governance arrangements for the APVMA whereby the governing board that
constitutes the APVMA is abolished. The term of the CEO's appointment was
previously agreed between the APVMA and the CEO in writing and is now to be
agreed in writing between the CEO and the Minister.
Item 37: Sections 35 and 36
117. Item 37 repeals section 35 and section 36. Section 35 dealt with remuneration and
allowances for the CEO. Section 36 addressed other benefits that the CEO may
receive. Item 37 substitutes a new section, "Remuneration and allowances".
118. New subsection 35(1) provides that the CEO is to be paid such remuneration as is
determined by the Remuneration Tribunal, but if no determination is in operation, the
CEO is to be paid such remuneration as is determined by the Minister.
119. New subsection 35(2) provides that the CEO is to be paid such allowances as are
determined by the Minister.
120. New subsection 35(3) provides that this section has effect subject to the Remuneration
Tribunal Act 1973.
Item 38: Section 37
121. Item 38 omits "APVMA with the written approval of the Minister" and substitutes
"Minister" in section 37, which relates to the terms and conditions of the CEO's
appointment. This amendment is required as part of the change in governance
arrangements for the APVMA whereby the governing board that constitutes the
APVMA is abolished. The terms of the CEO's appointment was previously
determined by the APVMA with the written approval of the Minister and will now be
determined by the Minister in writing.
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Item 39: Section 38
122. Item 39 omits the name "APVMA" and substitutes "Minister" in section 38, which
specifies arrangements for the CEO to engage in other paid employment. This
amendment is required as part of the change in governance arrangements for the
APVMA whereby the governing board that constituted the APVMA is abolished. The
power to give approval for the CEO to engage in other paid employment rested with
the APVMA (meaning the Chairperson and directors) and is now to rest with the
Minister.
Item 40: Section 40
123. Item 40 repeals section 40, which provided for leave of absence for the CEO for
purposes other than recreation and substitutes a new section, "Leave of absence for
other purposes".
124. New section 40 provides that the Minister may grant the CEO leave of absence, other
than recreation leave, on terms and conditions that the Minister determines in writing.
Item 41: Section 41
125. Item 41 omits the name "APVMA" and substitutes "Minister" in section 41, which
specifies arrangements for the CEO to resign. This amendment is required as part of
the change in governance arrangements for the APVMA whereby the governing board
that constitutes the APVMA is abolished. The new section 33 at item 35 provides that
the CEO is to be appointed by the Minister and hence logically any notice of
resignation of the CEO must now be given to the Minister.
Item 42: After section 41
126. Item 42 inserts a new section 41A, which deals with the termination of the appointment
of the CEO.
127. New section 41A provides that the Minister may terminate the appointment of the CEO
in the following circumstances: for misbehaviour or physical or mental incapacity; if
the CEO becomes bankrupt, or applies to take the benefit of any law for the relief of
bankrupt, or insolvent debtors, or compounds with his or her creditors, or makes an
assignment of his or her remuneration for the benefit of his or her creditors; if the CEO
is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12
months; if the CEO engages, except with the Minister's approval, in paid employment
outside the duties of his or her office; if the CEO fails, without reasonable excuse, to
comply with section 42 [regarding the disclosure of interests]; or if the Minister is
satisfied that the CEO's performance has been unsatisfactory.
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Item 43: Section 42
128. Item 43 omits "Chairperson" and substitutes "Minister" in section 42, which relates to
the disclosure of interests by the CEO. This amendment is required as part of the
change in governance arrangements for the APVMA whereby the governing board
(headed by the Chairperson) that constitutes the APVMA is abolished. The CEO was
previously required to disclose to the Chairperson all direct and indirect financial
interests that the CEO has or acquires in any business or in any body corporate
carrying on any business. Such disclosures are now to be made to the Minister.
Item 44: Subsections 43(1) to (3)
129. Item 44 repeals subsections 43(1) to (3), and substitutes a new subsection. Subsections
43(1) to (3) provided that the APVMA could appoint a person to act as the CEO, the
APVMA could terminate such an appointment, and that the appointee could resign by
giving the Chairperson a notice of resignation. This amendment is required as part of
the change in governance arrangements for the APVMA whereby the governing board
that constitutes the APVMA is abolished. The new section 33 at item 35 provides that
the CEO is to be appointed by the Minister and hence logically the power to appoint a
person to act as the CEO will now rest with the Minister.
130. New subsection 43(1) provides that the Minister may appoint a person to act as the
CEO during a vacancy in the office of CEO, whether or not an appointment has
previously been made to that office; or during any period that the CEO is absent from
duty or from Australia, or is otherwise unable to perform the duties of the office of
CEO.
Item 45: Part 5 (heading)
131. Item 45 repeals the heading of Part 5 that referred to "employees and consultants" and
substitutes it with "Part 5 - Staff and consultants".
Item 46: Section 45
132. Item 46 repeals section 45 that referred to "Employees" and substitutes a new section,
"Staff".
133. New subsection 45(1) provides that the staff of the APVMA are to be persons engaged
under the Public Service Act 1999. The staff of the APVMA had previously been
employed under the Administration Act. The employment of staff under the Public
Service Act 1999 reflects the Government policy that for bodies prescribed under the
Financial Management and Accountability Act 1997 staff should be employed under
the Public Service Act 1999.
134. New subsection 45(2) provides that, for the purposes of the Public Service Act 1999,
the CEO and staff of the APVMA together constitute a Statutory Agency, with the
CEO being the Head of that Statutory Agency. In effect the staff of the APVMA will
be employed by the APVMA on behalf of the Commonwealth and will not be the staff
of a Department.
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Item 47: Sections 48 and 49
135. Item 47 repeals sections 48 and 49, which provided for a human resources
development program and required the merit principle to apply to employment matters.
These matters are now dealt with (in effect) by virtue of APVMA staff being persons
engaged under the Public Service Act 1999. As such sections 48 and 49 are redundant.
Item 48: Sections 50 to 54
136. Item 48 repeals sections 50 to 54, relating to the development, approval and variation
of the corporate plan, and substitutes three new sections, "Development of corporate
plan", "Approval of corporate plan" and "Variation of corporate plan".
137. New subsection 50(1) provides that the APVMA must develop a corporate plan in
written form for a period that is specified in the plan and that the plan must define the
key objectives of the APVMA in performing its functions during the period to which
the plan relates, outlining in a broad sense the strategies to be engaged by the APVMA
to achieve the defined objectives.
138. New subsection 50(2) requires that the corporate plan must be for a period beginning
on 1 July for the year immediately following the expiry of the period to which the
previous corporate plan related. It is intended that the previous corporate plan would
expire on 30 June.
139. New subsection 51(1) requires the APVMA to provide the Minister with a copy of the
corporate plan for his or her approval on or before 1 June in each calendar year, except
where exempted from this requirement by the new subsection 51(2), or on a later date
that the Minister allows. The intent of the latter is to provide the Minister with
discretion in relation to the provision of the corporate plan.
140. New subsection 51(2) exempts the APVMA from the requirement to provide the
Minister with a corporate plan in a calendar year, if a plan is already in force for the
first year that the new plan would relate to, or the Minister determines at the request of
the APVMA that the APVMA is not required to provide him or her with a corporate
plan for approval for the particular year. The intent of this provision is to avoid the
need for the APVMA to submit the same corporate plan to the Minister for approval
each year where the corporate plan is a multi-year plan that has previously been
approved and is in effect for the relevant calendar year, if the Minister so determines.
141. New subsection 51(3) provides that a corporate plan comes into effect on the day that it
is approved by the Minister or the first day of the period to which it relates, whichever
is the later. The intent of this provision is to clarify that a corporate plan cannot come
into effect until approved by the Minister, but if the Minister approves the plan before
the period to which it relates to clarify that it cannot come into effect until the first day
(1 July as provided by subsection 50(2)) of the period to which the plan relates.
142. New subsection 52(1) provides that the APVMA may at any time, review a corporate
plan and consider whether a variation to the plan is necessary. The provision provides
that the APVMA may do so whether the plan has come into force or not.
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143. New subsection 52(2) provides that having considered whether a variation to the
corporate plan is necessary under subsection 52(1), the APVMA may vary the
corporate plan, provided the Minister approves of the variation. The provision
provides that this may occur at any time.
144. New subsection 52(3) provides that the Minister may request the APVMA to vary the
corporate plan, irrespective of whether it has come into force or not. The effect of this
provision is that the Minister may request the APVMA to vary a corporate plan that
has been given to him or her for approval, or a corporate plan that he or she has
previously approved.
145. New subsection 52(4) provides that where the Minister requests the APVMA to vary
the corporate plan, the APVMA must vary the corporate plan accordingly. The effect
of this provision is to compel the APVMA to comply with a request of the Minister to
vary the corporate plan. It is not envisaged that a request made by the Minister to vary
the corporate plan would constitute a direction to the APVMA concerning the
performance of its functions or the exercise of its powers. Section 10 of the
Administration Act deals with such directions.
146. New subsection 52(5) provides that if a variation of the corporate plan is approved by
the Minister after the plan has come into force, the plan is considered to be varied and
is in effect (including the variation) on and after the day the variation is approved.
This provision has the effect of continuing the previously approved plan, taking
account of, or including, the approved variation.
147. New subsection 52(6) provides that the APVMA may vary the corporate plan without
the approval of the Minister if the variation is of a minor nature. The provision
provides that the APVMA may make such a minor variation despite subsection 52(2),
which requires the approval of the Minister to vary the corporate plan. The provision
also provides that the variation takes effect on the day that it is made to the corporate
plan. It is envisaged that a minor variation would generally relate to administrative
matters such as a change in the name of a certain program or scheme within the
APVMA; or formatting improvements that do not alter the intent of the plan. The
intent of this provision is to provide the APVMA will an element of flexibility to vary
the corporate plan for minor matters.
148. New subsection 52(7) provides that if the APVMA makes a minor variation as
authorised by subsection 52(6), the APVMA must inform the Minister that the
variation has been made as soon as practicable after making it. The effect of this
provision is to keep the Minister advised and allow him or her to determine their
satisfaction in respect to the variation. It should be noted that subsection 52(3)
provides that the Minister may request the plan to be varied should the Minister not be
satisfied with the minor variation made by the APVMA.
Item 49: Paragraph 55(2)(b)
149. Item 49 omits the word "and" from subsection 55(2)(b). This is a consequential
amendment as a result of item 50 which repeals subsection 55(2)(c).
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Item 50: Paragraph 55(2)(c)
150. Item 50 repeals subsection 55(2)(c) which required that the annual operational plan
propose action to implement the human resources development program developed
under the previous section 48. The previous section 48 is repealed by item 47 as it has
been made redundant by virtue of APVMA staff now being persons engaged under the
Public Service Act 1999.
Item 51: Subsection 57(1)
151. Item 51 omits the words "Sections 52, 53 and 54 apply" from subsection 57(1) and
substitutes the words "Section 52 applies". The previous subsections 52, 53 and 54,
which related to the variation of the corporate plan, are repealed by item 48 and
substituted by a single new section, section 52, "Variation of corporate plan".
152. Subsection 57(1), as amended, has the effect that variations to the annual operational
plan, whether at the initiative of the APVMA or at the request of the Minister, are to be
dealt with in the same manner as variations to the corporate plan. The intent of this
provision is to maintain consistency between the corporate and annual operational
plans. This is of particular relevance as variations to the corporate plan may also
require consequential variations to the operational plan.
Item 52: Part 7
153. Item 52 repeals the previous "Part 7- Finance" and substitutes a new Part, "Part 7-
Finance and reporting requirements". This amendment is required as part of the
change in governance arrangements for the APVMA whereby financial regulation of
the body is being changed from regulation under the Commonwealth Authorities and
Companies Act 1997 to regulation under the Financial Management and
Accountability Act 1997.
154. New Part 7 contains three divisions. "Division 1 - Australian Pesticides and
Veterinary Medicines Special Account" provides for a Special Account and includes
the sections "Australian Pesticides and Veterinary Medicines Special Account",
"Credits to the Account" and "Purposes of the Account". "Division 2 - Reporting
requirements" specifies reporting requirements for the APVMA "Annual report".
"Division 3 - Exemption from taxation" provides for "Exemption from taxation".
155. New subsection 58(1) establishes the Australian Pesticides and Veterinary Medicines
Special Account.
156. New subsection 58(2) provides that the Australian Pesticides and Veterinary Medicines
Special Account is a Special Account for the purposes of the Financial Management
and Accountability Act 1997.
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157. The establishment of a Special Account is warranted as the operating costs of the
APVMA are recovered directly from the industry it regulates through the collection of
levies and fees, and the Special Account will optimise transparency in terms of
identifying the funds collected by the APVMA and the reporting on those funds,
facilitating stakeholder confidence. The Special Account will be required on an
ongoing basis.
158. New section 59 provides that the Special Account established by section 58 must be
credited with amounts equal to all money appropriated by the Parliament for the
purposes of the Special Account; fees received by the Commonwealth under the
Administration Act, under the Agricultural and Veterinary Chemicals Act 1988 or
under the Agvet Code or Agricultural and Veterinary Chemicals Code Regulations
1995; any amounts of levy, late payment penalty or understatement penalty paid to the
Commonwealth under any Act providing for the collection of a levy imposed in respect
of the disposal of chemical products; any amounts paid by a State to the
Commonwealth for the purposes of the APVMA; money received by the APVMA in
relation to property paid for with money from the Special Account; and amounts of any
gifts given or bequests made for the purposes of the Special Account. These are the
primary avenues of revenue for the APVMA and as such the effect of the provision is
that the revenue received by the APVMA is to be credited to the Australian Pesticides
and Veterinary Medicines Special Account. Section 57 of the Financial Management
and Accountability Act 1997 requires the financial statements of an agency (including
those pertaining to a Special Account) to be prepared in accordance with the Finance
Ministers Orders.
159. A note to section 59 observes that an Appropriation Act provides for amounts to be
credited to a Special Account if any purposes of the Account is a purpose that is
covered by an item in the Appropriation Act. This note relates to subsection 21(1) of
the Financial Management and Accountability Act 1997, which provides that if another
Act establishes a Special Account and identifies the purposes of the Special Account,
that the Consolidated Revenue Fund is appropriated for expenditure for those purposes,
up to the balance of the Special Account.
160. New subsection 60(1) provides that the section sets out the purposes of the Special
Account.
161. New subsection 60(2) provides that amounts standing to the credit of the Special
Account may be debited for purposes including: to pay or discharge the costs, expenses
or other obligations incurred by the APVMA in the performance of its functions; in
payment of any remuneration and allowances payable to any person under the
Administration Act; and in making any other payments that the APVMA is authorised
or required to make by or under the Administration Act or any other law of the
Commonwealth or any law of a State or Territory that is expressed to confer functions
or powers on the APVMA. These are the only means by which the APVMA is
authorised to expend public money.
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162. A note to section 60 observes that section 21 of the Financial Management and
Accountability Act 1997 is relevant to the provision. Subsection 21(1A) of that Act
provides that if an Act allows an amount standing to the credit of a Special Account to
be applied, debited, paid or otherwise used for a particular purpose, then, unless the
contrary intention appears, the amount may also be applied, paid or otherwise used in
making a notional payment for that purpose.
163. New subsection 61(1) requires that as soon as practicable after 30 June in each
financial year, the APVMA must prepare and give to the Minister an annual report on
the APVMA's operations during that year. A note to the provision observes that
section 34C of the Acts Interpretation Act 1901 contains provisions that are relevant to
annual reports.
164. New subsection 61(2) specifies the things that must be included in the annual report.
They include: an assessment of the extent to which its operations during the year to
which the report relates have contributed to the objectives set out in the corporate plan
applicable to the period and to the objectives set out in the annual operational plan that
relates to a period corresponding to that year; the particulars of variations (if any) of
the corporate plan and the annual operational plan taking effect during that year and
significant purchases and disposals of real property by the APVMA during that year
and any directions given to the APVMA by the Minister during that year to which
subsection 10(3) applies and the impact of the directions on the operations of the
APVMA; an evaluation of its overall performance during that year against the
performance indicators set out in the corporate plan applicable to the period and the
annual operational plan that came into force at the beginning of that year; the financial
statements required by section 49 of the Financial Management and Accountability Act
1997 and an audit report on those statements required by section 57 of the Financial
Management and Accountability Act 1997.
165. New section 62 provides that the APVMA is not subject to taxation under the laws of
the Commonwealth or of a State or Territory. This is consistent with other government
entities with a public purpose. A note to the provision observes that the APVMA may
however be subject to taxation under certain laws such as the A New Tax System
(Goods and Services Tax) Act 1999. That Act contains a provision (section 177-5),
which cancels the effect of another provision of another Act that would provide
exemption from liability to pay GST. However the cancellation does not apply if
certain conditions apply.
Item 53: Paragraph 69EP(7)(a)
166. Item 53 omits the term "director" and substitutes the term "Board member" in
subsection 69EP(7)(a) that provides that certain persons may be present at hearings
directed by the APVMA to be in private. The amendment is required as part of the
change in governance arrangements for the APVMA whereby the governing board
constituted by directors is disbanded and an Advisory Board established. The effect of
the amendment is authorise Advisory Board members to attend hearings that are to be
held in private. Such attendance may be necessary in order for the Advisory Board to
fulfil its function.
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Item 54: Subparagraph 70(1)(a)(i)
167. Item 54 repeals subparagraph 70(1)(a)(i) that provided that a certificate purported to be
signed by a director would upon mere production be receivable as prima facie evidence
of the matter started in the certificate to be an act done by the APVMA. The
amendment is required as part of the change in governance arrangements for the
APVMA whereby the governing board constituted by directors is disbanded. The
members of the Advisory Board established by section 14 (item 21) do not have the
power to sign certificates under section 70.
Item 55: Paragraph 70(2)(a)
168. Item 55 deletes the term "a director or" from subsection 70(2)(a) that provided that a
certificate purported to be signed by a director would upon mere production be
receivable as prima facie evidence that a named person is authorised to sign certificates
for the purposes of subsection 70(1). The amendment is required as part of the change
in governance arrangements for the APVMA whereby the governing board constituted
by directors is disbanded.
Schedule 2--Amendment of the Agricultural and Veterinary Chemicals
(Administration) Act 1992
PART 1 - DEFINITIONS
Item 1: Definitions
169. Item 1 sets out the definitions that apply in Schedule 2.
PART 2 - ASSETS, LIABILITIES AND LEGAL PROCEEDINGS
Item 2: Existing property, money and financial liabilities
170. Item 2 clarifies financial management arrangements regarding existing property,
money and financial liabilities at the commencement of this Schedule. Subitem 2(1)
provides that any real or personal property or money held by the APVMA immediately
prior to the commencement of Schedule 2 is taken, on the commencement of Schedule
2, to be held by the APVMA for and on behalf of the Commonwealth. This provision
is consistent with financial management arrangements for agencies prescribed under
the Financial Management and Accountability Act 1997.
171. Subitem 2(2) provides that any financial liabilities of the APVMA immediately prior to
the commencement of Schedule 2 are taken, on the commencement of Schedule 2, to
be liabilities of the Commonwealth. This provision is also consistent with financial
management arrangements for agencies prescribed under the Financial Management
and Accountability Act 1997.
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172. Subitem 2(3) clarifies that the financial management arrangements specified in
subitems 2(1) and 2(2) are subject to items 3 and 4 of Schedule 2, which stipulate
arrangements with respect to assets held on trust and liabilities on assets held on trust
by the APVMA.
173. Subitem 2(4) confirms that an amount of money equal to the amount of money held by
the APVMA immediately prior to the commencement of Schedule 2, which on the
commencement of Schedule will be held by the APVMA for and on behalf of the
Commonwealth, may be paid out of the Consolidated Revenue Fund and appropriated
accordingly for the purpose of the performance of APVMA functions.
Item 3: Vesting of assets held on trust by the APVMA
174. Item 3 deals with the vesting of assets held on trust by the APVMA. Subitem 3(1)
confirms that this item applies in relation to any assets held on trust by the APVMA
immediately prior to the commencement of Schedule 2.
175. Subitem 3(2) provides that, on the commencement of Schedule 2, assets held on trust
by the APVMA cease to be held by the APVMA and become assets held on trust by
the Commonwealth. The subitem clarifies that the settlement of these assets in the
possession of the Commonwealth is effected without any conveyance, transfer or
assignment and that, to avoid any doubt, the Commonwealth becomes the APVMA's
successor in law in relation to those assets. This provision is consistent with financial
management arrangements for agencies prescribed under the Financial Management
and Accountability Act 1997.
Item 4: Vesting of liabilities relating to assets held on trust
176. Item 4 deals with the vesting of liabilities relating to assets held on trust. Subitem 4(1)
confirms that this item applies in relation to any liabilities of the APVMA relating to
assets to which item 3 applies.
177. Subitem 4(2) has a similar operation to subitem 3(2). It provides that, on the
commencement of Schedule 2, liabilities to which this subitem applies cease to be
liabilities of the APVMA and become liabilities of the Commonwealth. The subitem
clarifies that the settlement of these liabilities in the possession of the Commonwealth
is effected without any conveyance, transfer or assignment and that, to avoid any
doubt, the Commonwealth becomes the APVMA's successor in law in relation to those
liabilities. This provision is consistent with financial management arrangements for
agencies prescribed under the Financial Management and Accountability Act 1997.
Item 5: Certificates relating to vesting of land
178. Item 5 deals with certificates relating to the vesting of land. Subitem 5(1) provides that
this item applies if land vests in the Commonwealth on the commencement of
Schedule 2 (pursuant to item 2) and a certificate in the form set out in subitem 5(1) is
lodged with a land registration official. Subitem 5(2) confirms that the land
registration official may register the land and deal with, and give effect to, the
certificate.
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Item 6: Certificates relating to vesting of assets other than land
179. Item 6 deals with certificates relating to the vesting of assets other than land. Subitem
6(1) provides that this item applies if any asset other than land vests in the
Commonwealth on the commencement of Schedule 2 (pursuant to item 2) and a
certificate in the form set out in subitem 5(1) is lodged with an assets registration
official. Subitem 6(2) confirms that the assets registration official may deal with, and
give effect to, the certificate as if it were a proper and appropriate instrument for
transactions of assets of that kind.
Item 7: Substitution of parties to proceedings
180. Item 7 confirms that, on the commencement of Schedule 2, the Commonwealth is
substituted as a party to any proceedings of a court or tribunal, relating to an asset held
on trust, to which the APVMA was a party immediately prior to the commencement of
this Schedule.
PART 3 - STAFFING MATTERS
Item 8: Directors of the APVMA
181. Item 8 is a transitional provision with respect to the office of APVMA directors. The
provision provides that any person, who is a director of the APVMA immediately prior
to the commencement of Schedule 2, ceases to hold such an office on the
commencement Schedule 2. The effect of this provision is to remove the present
directors of the APVMA from their office as directors.
Item 9: Chief Executive Officer
182. Item 9 is a transitional provision with respect to the office of the CEO. Subitem 9(1)
deals with the appointment of the CEO on the commencement of Schedule 2. The
effect of this provision is to appoint the person holding the office of the CEO
immediately prior to the commencement of Schedule 2 as the CEO at the
commencement of Schedule 2 for the purposes of section 33 of the Administration Act.
183. Paragraph 9(1)(a) confirms that the term of appointment of the CEO is the balance of
the term of appointment of the CEO that remained immediately prior to the
commencement of Schedule 2. Paragraph 9(1)(b) confirms that the appointment of the
CEO is on such terms and conditions that applied to the CEO immediately prior to
commencement of Schedule 2 subject to items 9(2) and 9(3).
184. Subitem 9(2) provides that, notwithstanding the repeal of section 36 of the
Administration Act, section 36 continues to have effect in relation to the CEO after the
commencement of Schedule 2. The purpose of this provision is to ensure that any
determination made by the APVMA under section 36 of the Administration Act with
respect to other benefits payable to the CEO will continue to have effect after the
commencement of Schedule 2.
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185. Subitem 9(3) confirms that the new section 41A has effect in relation to the CEO after
the commencement of Schedule 2. The new section 41A enables the Minister to
terminate the appointment of the CEO for various reasons.
Item 10: Transfer of staff
186. Item 10 is a transitional provision relating to the transfer of staff and staffing
procedures following the commencement of Schedule 2. Subitem 10(1) provides that
any staffing procedures of the APVMA that were in effect immediately prior to the
commencement of Schedule 2 continue to have effect after the commencement of
Schedule 2. Subitem 10(1) applies only in relation to processes that were commenced
but not completed at the commencement of Schedule 2, and things done by, for or in
relation to, the APVMA or an employee of the APVMA before the commencement of
Schedule 2.
187. Subitem 10(2) is a regulation making power for dealing with more complicated
staffing procedures that cannot be dealt with in this Act. This provision enables
regulations to be made for the purpose of prescribing details relating to how the
APVMA's staffing procedures will continue to apply after the commencement of
Schedule 2. It also enables regulations to be made in relation to other matters of a
transitional nature concerning the transfer of staff from employment under the
Administration Act to employment under the Public Service Act 1999.
188. Subitem 10(3) provides that subitem 10(1) and any regulations made under subitem
10(2) have effect notwithstanding any requirements of the Public Service Act 1999.
PART 4 - REFERENCES TO, AND THINGS DONE BY OR IN RELATION TO,
THE DIRECTORS OF THE APVMA
Item 11: Operation of laws - things done by, or in relation to, directors of the APVMA
189. Item 11 clarifies the operation of laws with respect to things done by, or in relation to,
directors of the APVMA after the commencement of Schedule 2. Subitem 11(1)
provides that any thing done by, or in relation to, directors of the APVMA prior to the
commencement of Schedule 2 is taken to have been done by, or in relation to, the CEO
after the commencement of Schedule 2. The purpose of this provision is to import
things done by, or in relation to, directors of the APVMA to the CEO on the
commencement of Schedule 2. The provision reinforces the CEO's responsibility for
the governance of the APVMA on the commencement date of Schedule 2.
190. Subitem 11(2) provides that a thing done before the commencement of Schedule 2
pursuant to a provision amended by Schedule 1 has effect from the time it is done as if
it were done under that provision as amended. This is a transitional provision, which
clarifies that things done by, or in relation to, directors of the APVMA under a
provision which is amended by Schedule 1 has effect from the time at which the thing
was actually done, as if the provision were already amended.
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191. Subitem 11(3) gives the Minister power to determine that subitem 11(1) does not apply
in relation to a specified thing done by, or in relation to, the directors of the APVMA;
or applies as if the reference in subitem 11(1) to the CEO was a reference to the
Commonwealth. This is a discretionary power that may be exercised, depending on
the individual circumstances of the matter.
192. Subitem 11(4) is a regulation making power with respect to determinations made by
the Minister under paragraph 11(3)(a). The effect of the provision is to allow
regulations to be made, which attribute things specified in a determination under
11(3)(a) to a person or body other than the CEO or the Commonwealth. It provides an
alternative to the options specified in subitem 11(3).
193. Subitem 11(5) clarifies that, for the purposes of item 11, a thing done by, or in relation
to, directors of the APVMA includes the making of an instrument. Item 1 defines the
term "instrument" to include a contract, deed, undertaking, agreement, notice,
authority, order, instruction or an instrument made under an Act or regulations (such as
a legislative instrument, an instrument of delegation, appointment or authorisation).
194. Subitem 11(6) confirms that a determination made by the Minister under subitem 11(3)
is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Item 12: References in instruments
195. Item 12 is a transitional provision regarding references in instruments to directors of
the APVMA. The term "instrument" is defined in item 1. Subitem 12(1) provides that
a reference to the directors of the APVMA in an instrument in force immediately
before the commencement of Schedule 2 has effect following the commencement of
Schedule as if the reference were a reference to the CEO.
196. Subitem 12(2) gives the Minister power to determine that subitem 12(1) does not apply
in relation to a specified reference (to the directors of the APVMA); or applies as if the
reference in subitem 11(1) to the CEO were a reference to the Commonwealth. This is
a discretionary power that may be exercised, depending on the individual
circumstances of the reference.
197. Subitem 12(3) is a regulation making power with respect to determinations made by
the Minister under paragraph 12(2)(a). The provision allows regulations to be made
stating that an instrument containing a reference to APVMA directors specified in a
determination made under paragraph 12(2)(a) has effect from the commencement of
Schedule 2 as if the reference to APVMA directors were a reference to a person or
body other than the CEO or the Commonwealth. The effect of this provision is to
replace any reference to APVMA directors with a reference to persons or bodies other
than the CEO or the Commonwealth. It provides an alternative to the options specified
in subitem 12(2).
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198. Subitem 12(4) confirms that a determination made by the Minister under subitem 12(2)
is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
PART 5 - REPORTING REQUIREMENTS AND RECORDS
Item 13: Reporting requirements
199. Item 13 is a transitional provision regarding reporting requirements. Subitem 13(1)
imposes a mandatory requirement on the CEO with respect to ongoing reporting
requirements. It provides that the CEO must submit reports that, prior to the
commencement of Schedule 2, were required to be submitted by the APVMA or its
directors after the commencement of Schedule 2.
200. Subitem 13(2) enables the CEO to meet similar reporting requirements in a single
report where the CEO is required to submit a report for a part of a period and the
APVMA is required to submit a report in relation to the remainder of the period. The
purpose of this provision is to streamline reporting requirements following the
commencement of Schedule 2.
201. Subitem 13(3) deals with reporting requirements ending before the commencement of
Schedule 2. The provision imposes a mandatory requirement on the CEO to submit
reports that the APVMA or its directors were required to submit prior to the
commencement of Schedule 2 and those reports are now overdue.
202. Subitem 13(4) confirms that where reporting requirements have been imposed on the
CEO by virtue of this item, the laws imposing those requirements have effect on the
CEO as if those requirements applied to the APVMA or its directors. To avoid any
doubt, this provision applies in relation to offence provisions for failing to provide
reports under the Administration Act.
Item 14: New annual report requirements to apply from 2007-2008 and later financial
years
203. Item 14 confirms that the new section 61 applies to the 2007-08 financial year and each
subsequent financial year. The new section 61 imposes a requirement on the APVMA
to prepare and submit to the Minister an annual report regarding the operations of the
APVMA for the relevant financial year.
Item 15: Access to records
204. Item 15 reinforces the existing obligation in subsection 27L(4) of the Commonwealth
Authorities and Companies Act 1997 regarding the right of access provided to directors
of a Commonwealth authority and persons who have ceased to be directors of a
Commonwealth authority in relation to the books of that authority. The provision
makes it clear that the CEO must continue to discharge the obligation on behalf of the
APVMA.
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Item 16: Continuing obligation to keep records
205. Item 16 reinforces the existing obligation in section 20 of the Commonwealth
Authorities and Companies Act 1997 regarding the APVMA's obligation to keep
accounting records. Section 20 of the Commonwealth Authorities and Companies Act
1997 imposes a requirement on the APVMA to keep accounting records in a certain
manner for a period of 7 years after the completion of the transactions to which they
relate, and to make those records available at all reasonable times for inspection by any
director of the authority.
PART 6 - MISCELLANEOUS
Item 17: Exemption from stamp duty and other State or Territory taxes
206. Item 17 provides an exemption from stamp duty or other State or Territory taxes
payable in connection with the transfer of an asset or liability under Schedule 2 or the
operation of Schedule 2 in any other respect.
Item 18: Constitutional safety net - acquisition of property
207. Item 18 provides a constitutional safety net with respect to an acquisition of property
that occurs by operation of Schedule 2. Subitem 18(1) provides that the
Commonwealth must pay a reasonable amount of compensation to the person from
whom the property is acquired. In the event of a dispute regarding the amount of
compensation, subitem 18(2) permits the person concerned to institute proceedings in a
court of competent jurisdiction.
Item 19: Certificates taken to be authentic
208. Item 19 confirms that certificates made or issued under Schedule 2 are taken to be
authentic unless otherwise established.
Item 20: Delegation by Minister
209. Item 20 is a delegation provision concerning the powers of the Minister under
Schedule 2. Subitem 20(1) permits the Minister to delegate all or any of his or her
powers and functions under Schedule 2 to the CEO. Subitem 20(2) confirms that the
CEO must comply with any directions of the Minister when exercising or performing
his or her delegated powers or functions.
Item 21: Regulations
210. Item 21 is a regulation making power enabling the Governor-General to prescribe any
matters required or permitted by Schedule 2 to be prescribed, or are necessary or
convenient for carrying out or giving effect to Schedule 2. The matters that are
required or permitted by Schedule 2 to be prescribed are transitional staffing matters as
specified in item 10 and matters concerning determinations made under Part 4.
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