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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
EXPORT CONTROL AMENDMENT (MISCELLANEOUS MEASURES) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of
the Minister for Agriculture, Drought and Emergency Management,
the Hon. David Littleproud MP)
EXPORT CONTROL AMENDMENT (MISCELLANEOUS MEASURES) BILL 2020
GENERAL OUTLINE
The Export Control Amendment (Miscellaneous Measures) Bill 2020 (the Bill) will make
amendments to the Export Control Act 2020 to support the implementation of the new export
control framework. The Export Control Act 2020 received Royal Assent on 6 March 2020
and will replace the Export Control Act 1982 when its substantive provisions commence at a
time fixed by proclamation or on 28 March 2021. The Act will be supported by the Export
Control Rules (the rules).
The Bill proposes the following amendments:
clarifying the circumstances where a fit and proper person test is required for an
application to vary a registration of an establishment, or to approve an alteration of an
establishment
enabling the rules to prescribe circumstances where the Secretary may approve or
refuse to approve a notice of intention to export prescribed goods
providing the Secretary with the power to prescribe requirements in the rules for
determining whether to issue or to refuse to issue an export permit
enabling the rules to modify how certain provisions in the Export Control Act 2020
and the Administrative Tribunals Act 1975 apply to reviewable decisions for tariff rate
quotas; and
enabling the rules to apply matters contained in any instrument of a foreign country
that sets out, or provides a method for calculating, the tariff rate quota for the
importation of a kind of goods into that country.
The Bill will support the implementation of the new export control framework and
Australia's agricultural export industry and stakeholders.
An exposure draft version of the Bill was released for consultation for two weeks in October
2020. One submission was received, however that was outside the scope of the Bill.
FINANCIAL IMPACT STATEMENT
The Bill will have no financial impact on the Australian Government Budget.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
The full statement of compatibility with human rights for the Bill is included in this
explanatory memorandum.
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NOTES ON CLAUSES
Export Control Amendment (Miscellaneous Measures) Bill 2020
Clause 1 Short title
This clause will provide that the Export Control Amendment (Miscellaneous Measures) Bill
2020 (the Bill), when enacted, may be cited as the Export Control Amendment
(Miscellaneous Measures) Act 2020.
Clause 2 Commencement
This clause will provide for the commencement of the whole of the Bill on the day after the
Bill receives Royal Assent.
Clause 3 Schedules
This clause will provide that legislation specified in a Schedule to the Bill will be amended or
repealed as set out in the applicable items in the Schedule concerned. Any other item in a
Schedule to the Bill will have effect according to its terms. This is a technical provision to
give operational effect to the amendments contained in the Schedules.
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Schedule 1--Amendments
Export Control Act 2020
Item 1 - Paragraphs 120(3)(a) and (b)
Section 120 of the Export Control Act 2020 allows an occupier to apply to the Secretary to
vary the registration of an establishment or approve an alteration to the establishment.
Subsection 120(3) enables the Secretary to make the variation, or approve the alteration, if
the Secretary is satisfied, having regard to any matter that the Secretary considers relevant,
that, if the variation were made or the alteration were approved, certain requirements would
continue to be met and any other requirements prescribed by the rules would be met.
Item 1 of the Bill will repeal paragraphs 120(3)(a) and (b) and substitute new paragraphs
120(3)(a) to (c). New paragraphs 120(3)(a), (b) and (c) will provide that the Secretary may
make the variation of the registration or approve an alteration of the establishment if the
Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that,
if the variation were made or the alteration were approved:
the requirements of paragraphs 112(2)(b) to (f) would continue to be met; and
any other requirements prescribed by the rules would be met; and
in the case of a variation because a new person (other than the occupier of a registered
establishment) has started, or is to start, managing or controlling export operations at
the registered establishment - the occupier of the registered establishment is a fit and
proper person.
Under this provision, the Secretary will not need to be satisfied that the occupier of the
registered establishment is a fit and proper person to make all variations or approve all
alterations. However, variations to the registration of an establishment that involve a new
person (other than the occupier) managing or controlling export operations at the
establishment will require the Secretary to be satisfied that the occupier of the registered
establishment is a fit and proper person.
It is necessary to ensure that an occupier is a fit and proper person as persons approved to
export goods from Australian territory are persons that are trustworthy and demonstrate the
required integrity necessary to uphold Australia's trading reputation. For circumstances
where a variation or alteration to the registered establishment does not change the personnel
involved in managing or controlling export operations at the registered establishment, the
requirement in 120(3)(c) is not enlivened.
These paragraphs will ensure that the level of regulatory oversight the department has is
proportionate to the type of variation and risk that is being managed.
Item 2 - At the end of subsection 225(2)
Subsection 225(2) of the Export Control Act 2020 sets out matters the Secretary may have
regard to when deciding whether to issue or refuse to issue an export permit for a kind of
prescribed goods.
Item 2 will insert new paragraph 225(2)(c), which provides that the Secretary may have
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regard to whether any requirements prescribed by the rules have been met or will be met
before the goods are imported into the importing country. This new paragraph enables the
Secretary to consider any other requirements prescribed by the rules when deciding whether
to issue or refuse to issue an export permit. For example, the rules may prescribe
requirements for certain kinds of prescribed goods, or prescribed goods being exported to
particular countries.
Item 3 - Paragraph 242(c)
Section 242 provides a simplified outline of Part 1 of Chapter 8 of the Export Control Act
2020.
Item 3 will repeal paragraph 242(c) and substitute new paragraph 242(c). The intention of
this amendment is to describe the content more accurately in Part 1 of Chapter 8 of the
Export Control Act 2020 and relates to the changes outlined in items 4, 5, 6 and 7 of the Bill.
Item 4 - Section 243 (heading)
Section 243 of the Export Control Act 2020 outlines the general requirements for a notice of
intention to export.
Item 4 will omit the word "requirements" after the word "general" in the heading. This will
ensure the content of this provision is accurately described. It relates to the changes outlined
in items 5, 6 and 7 of the Bill.
Item 5 - Subsection 243(1)
Subsection 243(1) lists certain matters relating to a notice of intention to export. Item 5 will
omit all the words before paragraph (a) and substitute new words to provide that subsection
243(1) applies if the rules provide for a notice of intention to export a consignment of
prescribed goods to be given. This change reflects that not all rules require notices of
intention to be given to export prescribed goods.
Item 6 - Paragraph 243(1)(g)
Item 6 will repeal paragraph 243(1)(g) and substitute a new paragraph 243(1)(g). The new
paragraph will provide that the rules may prescribe a time when, or a period within which, a
notice of intention to export must be given. Alternatively, the Secretary may allow a different
time or period in relation to the consignment of prescribed goods. The new paragraph will
enable flexibility for the required timing of a notice of intention to export, depending on the
circumstances.
Item 7 - At the end of section 243
Item 7 will add a subheading and new subsection to section 243 of the Export Control Act
2020. This subsection will provide that the rules may provide for the Secretary to approve or
refuse to approve a notice of intention to export a consignment of a kind of prescribed goods.
The subsection will also provide that the rules may make provision for and in relation to
matters related to the Secretary's decision to approve or refuse to approve the notice of
intention.
Enabling the rules to provide for the Secretary to approve or refuse to approve a notice of
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intention, and to make provision for and relation to the Secretary's decision, will provide the
Secretary with an appropriate basis upon which to approve, or refuse to approve, a notice of
intention. The Secretary's decision may, for example, be made in relation to a kind of
prescribed goods because kinds of prescribed goods may have different requirements relating
to notices of intention.
Item 8 - Paragraph 372(1)(a)
Section 372(1) of the Export Control Act 2020 outlines the regulatory controls that are
subject to the fit and proper person test. These regulatory controls involve determining
whether a person is a fit and proper person.
Item 8 will amend section 372(1)(a) to insert a reference to "120" after "117". This change
means that the fit and proper person test in section 372 of the Export Control Act 2020 will
apply when a determination of whether a person is a fit and proper person is required for the
purposes of section 120. This also reflects the changes outlined in item 1 of the Bill.
Item 9 - Section 386 (at the end of the heading)
Section 386 of the Export Control Act 2020 provides that the rules may prescribe
modifications of the Export Control Act 2020 and the Administrative Appeals Tribunal Act
1975 for reviews of decisions relating to tariff rate quota entitlements.
Item 9 will insert the words "or tariff rate quota certificates" at the end of the heading to
section 386. The intention of this amendment is to accurately describe the content in section
386 of the Export Control Act 2020 as it relates to tariff rate quota systems as outlined in
section 264. Section 264 provides for both tariff rate quota entitlements and tariff rate quota
certificates. This amendment also relates to the changes outlined in items 10, 11, 12 and 13 of
the Bill.
Item 10 - At the end of subsection 386(1)
Item 10 will insert the words "or tariff rate quota certificates" at the end of subsection 386(1).
This will enable the rules to modify how subsection 383(4) of the Export Control Act 2020
apply to reviewable decisions relating to tariff rate quota certificates.
Item 11 - Subsection 386(1) (note)
Item 11 will omit the word "entitlements" and substitute the word "systems" in the note to
subsection 386(1). This will reflect the change outlined in item 10 of the Bill, which provides
that subsection 386(1) applies to both tariff rate quota entitlements and tariff rate quota
certificates.
Item 12 - Subsection 386(2)
Item 12 will insert the words "or tariff rate quota certificates" after "entitlements" in
subsection 386(2). This will enable the rules to modify how subsection 383(4) of the Export
Control Act 2020 apply to reviewable decisions relating to tariff rate quota certificates.
Item 13 - At the end of subsection 386(3)
Item 13 will insert the words "or tariff rate quota certificates" at the end of subsection 386(3).
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This will enable the rules to modify how subsection 43(1) of the Administrative Appeals
Tribunal Act 1975 apply to reviewable decisions for tariff rate quota certificates.
Item 14 - Paragraph 432(3)(g) (not including the notes)
Section 432 of the Export Control Act 2020 provides that the Secretary may, by legislative
instrument, make rules prescribing matters required or permitted by the Export Control Act
2020 to be prescribed by the rules. Subsection 432(3) provides that the rules may make
provision for or in relation to a matter by applying, adopting or incorporating various matters,
with or without modification.
Item 14 will repeal paragraph 432(3)(g) and substitute new paragraphs 432(3)(g) and (h). The
new paragraphs 432(3)(g) and (h) will provide that the rules may make provision for and in
relation to a matter by applying, adopting or incorporating, with or without modification, any
of the following as in force or existing from time to time:
matters contained in any instrument or writing that: sets out, or provides a method for
calculating, the tariff rate quota for the importation of a kind of goods into a country
from Australian territory; and is made by the authority or body that is responsible for
regulating the importation of goods of that kind into that country from Australian
territory;
any matter contained in an agreement between Australia and another country or body
that sets out, or provides a method for calculating, the tariff rate quota for the
importation of a kind of goods into a country covered by the agreement from
Australian territory. Agreements between Australia and another country or body (for
example, the European Union) may set out or provide a method for calculating the
tariff rate quota for the importation of a kind of goods covered by the agreement from
Australian territory.
This will enable the rules to apply, adopt or incorporate matters contained in instruments that
relate to tariff rate quotas, which may not be made by an authority or body responsible for
regulating the importation of a kind of goods into that country from Australian territory. An
example of an instrument may include a free trade agreement between Australia and another
country.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Export Control Amendment (Miscellaneous Measures) Bill 2020
The Export Control Amendment (Miscellaneous Measures) Bill 2020 (the Bill) is compatible
with the human rights and freedoms recognised or declared by the international instruments
listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill will:
clarify the circumstances where a fit and proper person test is required for an
application to vary a registration of an establishment, or to approve an alteration of an
establishment
enable the rules to prescribe circumstances where the Secretary may approve or refuse
to approve a notice of intention to export prescribed goods
provide the Secretary with the power to prescribe requirements in the rules for
determining whether to issue an export permit
enable the rules to modify how certain provisions in the Export Control Act 2020 and
Administrative Tribunals Act 1975 apply to reviewable decisions for tariff rate quotas;
and
enable the rules to apply matters contained in any instrument of a foreign country that
sets out, or provides a method for calculating, the tariff rate quota for the importation
of a kind of goods into that country.
Conclusion
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011, as the Bill does not engage any human rights issues.
(Circulated by authority of
the Minister for Agriculture, Drought and Emergency Management,
the Hon. David Littleproud MP)
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