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1996
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
PRIMARY INDUSTRIES AND ENERGY
LEGISLATION
AMENDMENT BILL (No 3) 1996
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Primary Industries and Energy,
the Hon John
Anderson, MP)
79574
PRIMARY INDUSTRIES AND ENERGY
LEGISLATION AMENDMENT
BILL (NO. 3) 1996
GENERAL OUTLINE
1. To
introduce amendments to the Agricultural and Veterinary
Chemicals Code Act
1994, the Farm Household Support Act 1992,
the Australian Wool Research and
Promotion Organisation Act
1993. The Tobacco Marketing Act 1965 is repealed
and savings
provisions are introduced.
2. The Bill will also
introduce minor technical amendments to the
following Acts:
Dried
Vine Fruits Equalisation Act 1978
Forestry and Timber Bureau Act
1930
Primary Industries and Energy Research and Development Act
1989
Primary Industries Levies and Charges Collection (Consequential
Provisions) Act 1991.
3. The proposed amendments to the Agricultural
and Veterinary
Chemicals Code Act 1994 extend the Part 3 compensation
provisions
to cover the active constituent of a chemical product. Part 3
already
applies to agricultural and veterinary chemical products, but does
not apply to an individual active constituent where that active
constituent is the responsibility of a company separate from the
chemical product company. The active constituent compensation
provisions, when enacted, will apply between the primary applicant
with
a protected active constituent and a secondary applicant
seeking access to
certain information relating to the protected active
constituent.
4. In particular, the proposed amendments are in
response to
concerns expressed by some companies involved with the
marketing of active constituents. Those concerns relate to the
generation of active constituent review information, requested by
the
National Registration Authority for Agricultural and
Veterinary Chemicals,
for the purpose of reviewing existing active
constituents to ensure they
meet contemporary standards. The
proposed amendments will remove the
concern about commercial
exploitation by providing compensation provisions
analogous to
those already applying to agricultural and veterinary chemical
products.
5. The amendments to the Farm Household Support Act 1992
(the
FHS Act) strengthen the multiple entitlement exclusion provisions
of the FHS Act in relation to the drought relief payment (DRP).
6. The proposed amendment will prevent recipients of the DRP or
their
partners Òdouble dippingÓ by receiving support in a couple-rate
payment under this Act while at the same time obtaining payments
or
allowances identified separately under the Social Security Act
1991 or the
VeteransÕ Entitlement Act 1986. When DRP is
calculated, an amount
for the partner is included in the DRP
payment. Hence if the partner were
to claim a payment in his/her
own right, such as partner allowance or
parenting allowance, he/she
would in effect receive the same support twice -
once as a
component of the DRP and again as a separate payment under the
Social Security Act 1991 or the VeteransÕ Entitlements Act 1986.
Following this amendment such a case will not be possible.
7. The
Bill repeals the Tobacco Marketing Act 1965, which provides the
legislative
basis for the Australian Tobacco Marketing Advisory
Committee (ATMAC) which
ceased operations on 3 July 1995. The
savings provisions provide for the
transfer of all rights, assets,
obligations and liabilities from ATMAC to
the Tobacco Research and
Development Corporation (TRDC).
8. The
amendment to subsection 79(2) of the Australian Wool
Research and Promotion
Organisation Act 1993 (the AWRAP Act)
will repeal the 1 July 1977 sunset
date for wool industry
contributions to the Australian Animal Health Council
(AAHC).
9. The AAHC was established by the Agriculture and Resource
Management Council of Australia and New Zealand to oversee
animal health
policy development and national program delivery
in Australia. It commenced
as a corporate body on 19 January 1996
funded by contributions by the
various animal industries.
10. The predecessor program of the AAHC was
the Exotic Animal
Disease Preparedness Consultative Council (EXANDIS) which
was
administered by the Department of Primary Industries and Energy.
This was also funded by the Australian Wool Research and
Promotion
Organisation (AWRAP) for the wool industry and by
contributions from other
animal industries.
11. Under the Primary Industries and Energy
Legislation Amendment
Act (No1) 1996, the AWRAP Act was amended to provide
for the
wool industry contribution to the AAHC to be funded by AWRAP
until 30 June 1997. The contribution each year is prescribed
annually
by regulation. Payments have been prescribed for the 1995-
96 and 1996-97
financial years.
12. The objective of this provision, and the reason for
its sunset, was to
provide an interim funding arrangement pending wool
industry
agreement on longer term funding.
13. The repeal of the
sunset date of 1 July 1997 will enable the wool
industry to continue to meet
its financial obligations to fund the
AAHC, while it further examines
options to provide for a longer
term solution for funding
AAHC.
FINANCIAL IMPACT STATEMENT
14. The amendments to the
Agricultural and Chemicals Code Act 1994,
the Australian Wool Research and
Promotion Organisation Act
1993, and the repeal of the Tobacco Marketing Act
1965 have no
financial impact on the Commonwealth Budget.
15. The
amendment to the Farm Household Support Act 1992 will
result in an
estimated saving to the Commonwealth of over $9
million each
year.
NOTES ON CLAUSES
Clause 1 - Short title
16. This
clause provides for the Act to be called the Primary Industries
and Energy
Legislation Amendment Act (No. 3) 1996.
Clause 2 -
Commencement
17. This clause provides for the Act to come into effect on
the day it
receives Royal Assent. It also provides that item 1 of Schedule
3
which repeals the Tobacco Marketing Act 1965 is to come into effect
after item 2 of Schedule 3 which deals with assignment of rights
assets,
obligations and liabilities under the Act.
18. The clause further
provides that the amendments to the Dried Vine
Fruits Equalisation Act 1978
in Schedule 5 are taken to have
commenced immediately after the commencement
of Schedule 1 to
the Primary Industries Levies and Charges Collection
(Consequential Provisions) Act 1991.
19. The clause also provides
that the amendments to the Primary
Industries Research and Development Act
1989 in item 4 of
Schedule 5 are taken to have commenced on the date on
which that
Act received Royal Assent.
20. In addition the clause
provides that the amendments to the Primary
Industries Levies and Charges
Collection (Consequential
Provisions) Act 1991 in items 5 to 9 of Schedule
5 are taken to have
commenced on the day on which that Act received Royal
Assent.
Clause 3 - Schedule(s)
21. This clause provides, subject
to clause 2, that the Acts referred to in
the Schedules are amended as set
out in the Schedules and the other
items in the Schedules have effect
according to their terms.
SCHEDULE 1
AMENDMENT OF THE
AGRICULTURAL AND VETERINARY
CHEMICALS CODE ACT 1994
Item 1: Section
3
22. It is proposed to amend this section by inserting a definition of
primary active constituent. The actual definition is located in section
59. In essence, that definition means that if information about an
active constituent has been provided in compliance with a
requirement
made by the NRA under paragraph 32(2)(b) or sections
33 or 159, then
protected information has been given to the NRA in
relation to a protected
active constituent (the primary active
constituent).
Item 2: Section
3 (definition of primary applicant)
23. It is proposed to remake the
definition of primary applicant by adding
an interested person who provides
protected information to the NRA
concerning a primary active constituent.
An interested person is also
to include a person acting on the interested
personÕs behalf.
Item 3: Section 3
24. It is proposed to
insert a definition of protected active constituent
which in essence means a
constituent patented under the Patents Act
1952 or the Patents Act 1990, and
the term of the patent has ended or
will end during the protection period
that applies to the protected
information about that
constituent.
Item 4: Section 3 (paragraph (b) of the definition of
protected chemical
product)
25. It is proposed to amend paragraph (b)
of the definition of protected
chemical product by omitting
Òprotected registration informationÓ
and substituting
Òprotected informationÓ. Thus the proposed
definition will
accommodate the inclusion of a protected active
constituent.
Item 5:
Section 3
26. It is proposed to insert a definition of protected
information. That
definition means information relating to an active
constituent or a
chemical product that has been obtained from trials or
laboratory
experiments. Also, the information relates to the interaction
between
the constituent or product and the environment or living organisms,
but does not include information in respect of the efficacy of the
constituent or product.
Item 6: Section 3 (definition of protected
registration information)
27. It is proposed to repeal the definition as
it is no longer relevant.
Item 7: Section 3 (definition of protection
period)
28. It is proposed to omit ÒregistrationÓ from the
definition as a
consequence of the proposed amendments to include active
constituents under the compensation provisions of Part 3.
Item 8:
Section 3
29. It is proposed to insert a definition of secondary active
constituent.
The actual definition is located in section 59. In essence,
the
definition means that the NRA must not use protected information
about a primary active constituent in determining whether to
approve, or
to continue the approval of, another active constituent
for a proposed or
existing chemical product (the secondary active
constituent).
Item 9:
Section 3 (definition of secondary applicant)
30. It is proposed to
remake the definition of secondary applicant in
relation to a secondary
chemical product so as to add a definition of
secondary applicant in
relation to a secondary active constituent.
31. The purpose of the
proposed amendment is to define the person who
is the secondary applicant
and covers the original applicant, a person
contracted to act on behalf of
the original applicant, the legal personal
representative of a deceased
original applicant, or if the original
applicant was a body corporate the
successor in law of the body
corporate.
Item 10: Section
39
32. The proposed amendment remakes section 39 so as to add provisions
to suspend the approval of a primary active constituent and/or the
secondary active constituent. The circumstances in which this may
arise
is where the arbitrator gives notice to the NRA under section 68
of the
failure of either the primary applicant or the secondary
applicant to
arbitrate the terms of compensation under Division 3 of
Part 3. In that
event, the NRA may suspend the approval of the
primary active constituent or
secondary active constituent as the
circumstances may
warrant.
Item 11: Subsections 57(1), (2) and (3)
33. The
proposed amendment remakes subsection 57(1) so as to add that
the Part 3
compensation provisions include protected information
provided to the NRA in
respect of a protected active constituent.
34. It is also proposed to
remake subsection 57(2) so as to add that the
conditions for relevant active
constituent information to be
compensable are that the protected active
constituent must be
patentable and that the term of the patent has ended or
is about to
end. Furthermore, that the information provided to the NRA was
obtained from trials or laboratory experiments and relates to the
interaction between the constituent and the environment or living
organisms, but excludes information that was obtained for efficacy
evaluation purposes.
35 Furthermore, it is proposed to remake
subsection 57(3) so as to add
that compensation is not payable in respect of
active constituent
information provided to the NRA if the active constituent
is for use
only in relation to animals that are not a food-producing
species.
Item 12: Subsection 59(1)
36. The proposed amendment
remakes subsection 59(1) so as to add
certain protected information
requested by the NRA under
paragraphs 32(2)(b), section 33 or section 159 in
relation to a protected
active constituent.
37. In particular, the
NRA must not use the protected information in
determining whether to approve
another active constituent,
including a determination to continue an
existing approval of an
active constituent.
Item 13: Subparagraph
59(2)(a)(i)
38. The proposed amendment to omit Òthe secondary
chemical productÓ
and substitute Òthe secondary active
constituent or the secondary
chemical product, as the case may beÓ is
a consequential amendment
to remake the compensation provisions so as to add
protected active
constituents to the coverage provided by subparagraph
59(2)(a)(i).
Item 14: Paragraph 59(5)(a)
39. It is proposed to
amend paragraph 59(5)(a) to insert a reference to
Òapproval, or
continued approval, of the secondary active
constituentÓ. In
essence, the effect is that the validity of the approval
or continued
approval of the secondary active constituent is not
affected by a
contravention by the NRA of its duty to comply with
subsection
59(1).
Item 15: Paragraph 60(1)(a)
40. It is proposed to remake
paragraph 60(1)(a) so as to add the approval
or continued approval by the
NRA of an active constituent for a
proposed or existing chemical product.
Item 16: Paragraph 60(2)(a)
41. It is proposed to remake
paragraph 60(2)(a) so as to add the approval
or continued approval by the
NRA of an active constituent for a
proposed or existing chemical
product.
Item 17: Subparagraphs 60(3)(a)(i) and (ii)
42. It is
proposed to remake subparagraph 60(3)(a)(i) so as to add that the
NRA can
provide certain prescribed active constituent information to
the primary
applicant about the secondary applicant. That
information to include
certain details about the secondary active
constituent so as to facilitate
the negotiation of compensation that
could apply between the primary and
secondary applicants.
43. It is also proposed to remake subparagraph
60(3)(a)(ii) so as to add
that the NRA can provide certain prescribed
information to the
secondary applicant about the primary applicant including
certain
details about the primary active constituent. The exchange of
information is intended to facilitate the negotiation of compensation
that could apply between the primary and secondary applicants. The
situation where the NRA is required to provide information to the
secondary applicant, and there is more than one primary applicant
and/or
more than one primary active constituent, is also addressed.
Item 18:
Paragraph 60(3)(b)
44. It is proposed to remake paragraph 60(3)(b) so as
to add that the notice
which the NRA provides to the primary and secondary
applicants
advises them that the NRAÕs reconsideration of the
approval of a
secondary active constituent cannot be completed unless the
NRA
uses protected information.
45. Furthermore, that the NRA is
precluded from using protected
information except in circumstances
prescribed by paragraph 59(2)(a)
or (d).
Item 19: Subparagraph
60(3)(d)(iii)
46. It is proposed to remake paragraph 60(3)(d)(iii) so as
to add that if the
arbitrator finds that no reasonable proposals were made
in respect of
compensation bids for access to protected active constituent
information, the NRA may suspend the approval of the primary
active
constituent and/or the secondary active constituent as is
considered
appropriate by the NRA.
Item 20: Paragraphs 61(a), (c) and
(d)
47. It is proposed to omit Òprotected registration
informationÓ and
substitute Òprotected informationÓ in
paragraphs 61(a), (c) and (d),
thus adding active constituent information to
the meaning of those
paragraphs.
Item 21: Subparagraphs 69(1)(b)(i)
and (ii)
48. It is proposed to omit Òprotected registration
informationÓ and
substitute Òprotected informationÓ in
subparagraphs 69(1)(b)(i) and
(ii), thus adding active constituent
information to the meaning of
those subparagraphs.
Item 22:
Subsection 69(3)
28. It is proposed to omit Òprotected
registration informationÓ and
substitute Òprotected
informationÓ in subsection 69(3), thus adding
active constituent
information to the meaning of that subsection.
Item 23: Subsection
72(3)
49. It is proposed to remake subsection 72(3) (Explanation of Part)
so as to
remove an inconsistency with section 73 concerning veterinary
surgeons acting under other laws.
Item 24: Paragraph
167(1)(h)
50. It is proposed to omit ÒregistrationÓ from
paragraph 167(1)(h) so that a
relevant administrative decision by the NRA to
use protected active
constituent information under paragraph 59(2)(d) is
appealable to the
Administrative Appeals Tribunal for merits review of that
decision.
SCHEDULE 2
AMENDMENT OF THE FARM HOUSEHOLD SUPPORT
ACT 1992
Item 1: Subsection 3 (1)
51. This section amends
subsection 3(1) of the Farm Household Support
Act 1992 (the FHS Act) to
insert a definition of non-benefit parenting
allowance. The amendment
ascribes to the term Ònon-benefit
parenting allowanceÓ the
same meaning as in the Social Security
Act 1991.
Item 2: After
subsection 12(1)
52. This section adds subsection 12(1A) which prevents
a person from
receiving the drought relief payment for a period if that
person is a
member of a couple and the personÕs partner is receiving
or has
received either the drought relief payment or the farm household
support payment for that period.
Item 3: Subsection 21(4)
53. Item 3 amends subsection 21(4) to include section 21A within the
operation of the subsection.
Item 4: Subsection 24A (1)
54. Item 4 omits subsection 24A(1) and substitutes a new subsection
which limits the rate at which drought relief payment is payable to a
person to the rate at which Newstart allowance would be payable if
the
person were entitled to receive Newstart allowance; plus, the
amount of the
partner allowance rate that is greater than the income
support payment being
received in relation to the personÕs partner;
plus, the amount of the
exempt assets family payment rate that is
greater than the family payment
rate being received in relation to
the personÕs partner.
55. Item 4 also adds a new subsection 24A(1A) which defines the terms
Òexempt assets family payment rateÓ, Òfamily payment
rateÓ,
Óincome support payment rateÓ and
Òpartner allowance rateÓ for the
purposes of subsection
24A(1).
Item 5: Subsection 24A(2)
56. Item 5 amends subsection
24A(2) to include the whole of section
24A within the operation of the
subsection.
SCHEDULE 3
REPEAL OF THE TOBACCO MARKETING ACT
1965
PART 1 - Repeal of the Act
Tobacco Marketing Act
1965
Item 1: The whole of the Act
57. This section repeals the
Tobacco Marketing Act 1965.
PART 2 - Saving provisions
Item 2:
Transfer of rights, assets, obligations and liabilities
58. This section
transfers all rights, assets, obligations and liabilities
from ATMAC to the
TRDC.
Item 3: Annual Report of the Committee
59. This section
requires the TRDC to prepare a report on the operations
of ATMAC for the
period from 1 January 1996 until repeal of the Act
together with the
financial statements of the Committee for the
same period. It also requires
the financial statements to be approved
by the Auditor General and then,
along with the report, be
presented to the Minister for Primary Industries
and Energy.
Item 4: Definitions
60. Outlines definitions for
interpretation of Part 2.
SCHEDULE 4
AMENDMENT OF THE
AUSTRALIAN WOOL RESEARCH AND
PROMOTION ORGANISATION ACT 1993
Item 1:
Subsection 79(2)
61. This item repeals the sunset date in subsection
79(2) for payments by
the wool industry to the Australian Animal Health
Council from 1
July 1997 when the current arrangement expires. This will
provide
for continued financial contributions to the AAHC by the wool
industry after 1 July 1997 and give the industry more time to
consider
longer term funding arrangements.
SCHEDULE 5
MINOR TECHNICAL
AMENDMENTS OF VARIOUS ACTS
Dried Vine Fruits Equalisation Act
1978
Item 1: Subsection 3(1) (definition of levy)
62. This item
repeals the definition of levy.
Item 2: Section 31
63. Section 31
is repealed.
Forestry and Timber Bureau Act 1930
Item 3:
Subsection 2(1) (definition of the Territories)
64. This item removes
Papua New Guinea from the definition of the
Territories.
Primary
Industries and Energy Research and Development Act 1989
Item 4: Schedule
2, amendment of subsection 5(3) of the Honey Export
Charge Act
1973
65. Replaces the reference Ô5(3)Õ with
Ô(7(3)Õ to correct a previously
misdescribed
amendment.
Primary Industries Levies and Charges Collection
(Consequential
Provisions) Act 1991
Item 5: Schedule 1, first
amendment of subsection 3(1) of the Dried Vine
Fruits Equalisation Act
1978
66. Deletes the reference to ÔmonthÕ.
Item 6:
Schedule 1, amendment of paragraph 7(1)(b) of the Dried Vine
Fruits
Equalisation Act 1978
67. Repeals a previous misdescribed
amendment.
Item 7: Schedule 1, amendment of the Dried Vine Fruits
Equalisation Act
1978 to omit Part III
68. Repeals a previous
misdescribed amendment.
Item 8: Schedule 1, amendment of the Dried Vine
Fruits Equalisation Act
1978 to repeal section 29
69. Repeals a
previous misdescribed amendment.
Item 9: Schedule 1, amendment of section
30 of the Dried Vine Fruits
Equalisation Act 1978
70. Repeals a
previous misdescribed amendment.