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Agricultural and Veterinary Chemicals (Control
of Use) (Further Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
Clause 1 sets out that the main purpose of the Bill is to make
miscellaneous amendments to the Agricultural and Veterinary
Chemicals (Control of Use) Act 1992.
Clause 2 provides the commencement provision of the Bill. The Bill will
come into operation on the day after it receives Royal Assent.
Clause 3 defines the Principal Act, as the Agricultural and Veterinary
Chemicals (Control of Use) Act 1992 ("the Act").
Clause 4 amends the purposes of the Act to cover the existing and new
controls about the transport, handling, sale and other dealings
with agricultural produce, fertilisers and stock food.
Clause 5 amends section 4 of the Act to--
· amend the definition of "chief administrator" by
substituting a reference to the "Public Sector
Management and Employment Act 1998" for the
reference to the "Public Sector Management Act 1992"
which has been repealed.
· amend the definition of "relevant Act" to include the
Health Act 1958. This is to allow for previous
convictions for offences against the Health Act 1958 to
be taken unto consideration in relation to licence and
permit applications under the Act. The Health Act 1958
licenses pest control operators who use agricultural
chemical products for the control of certain pests in
domestic situations (eg. termites and vermin).
541204 BILL LA CIRCULATION 24/8/2001
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· amend the definition of "sell" to cover the circumstances
of veterinary practitioners and people who apply
fertilisers where the sale of the chemical product or
fertiliser occurs as a part of a service provided by the
veterinary practitioner or those people.
· inserts definitions for new terms introduced in the Bill
including--
· "contaminated" in relation to fertilisers and stock
food;
· "maximum limit" for limits in relation to
deleterious substances that may be present in a
fertiliser or stock food. Fertilisers or stock food
containing substances above the maximum limit as
declared by order under section 4(4)(ga) would
fall within the definition of contaminated.
Clause 6 inserts section 4(4)(ga) allowing for maximum limits to be
declared by Order for substances that may be present in fertilisers
or stock foods.
Clause 7 amends section 5 by inserting "or regulations made under this
Act". This is to extend the existing powers under the section to
enable Orders in Council to exempt classes of persons
(eg. people operating recognised quality assurance programs that
require standards that are equivalent to the requirements of the
regulations) from specific regulations made under the Act.
Clause 8 amends section 6(1)(c) by inserting "and the use is not prohibited
under section 25A". This will have the effect that the use of
unregistered products by veterinary practitioners can be limited
by Orders in Council made under section 25A. These powers are
required to limit the use of unregistered products by veterinary
practitioners in relation to food producing animals (stock), which
may lead to unacceptable levels of residues in agricultural
produce derived from stock.
Clause 9 amends section 19 by--
· inserting "in particular circumstances" into sub-section
(3). This will require users of chemical products to
comply with specific statements which appear on product
labels when those statements state that a product must not
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be used in specific circumstances, eg. "Do not use within
50m of a waterway" or "Do not use if the temperature is
greater than 30C".
· inserts new section 19(5) providing for an offence for the
use of a prescribed chemical product contrary to a
prescribed label statement. This is to provide for
compliance with label statements that are worded as a
directive (eg. a person must a chemical product in a
specific manner) rather than a prohibitive statement (eg. a
person must not use a chemical product in specific
circumstances) which is provided for by section 19(3).
There is an exception to the section when a permit is
issued specifying a use contrary to the prescribed
statement. Such permits are to be issued either by the
National Registration Authority or by the State.
· amends section 19(6) which prohibits the sale of
agricultural produce or stock to which a chemical product
or stockfood has been applied, if the relevant withholding
period has not expired, unless the seller has notified the
buyer that the period has not expired. The amendment
extends the provision to prohibit the sale of agricultural
produce derived from stock (eg. wool or milk) when a
chemical product has been applied to the stock or the
stock has consumed the stockfood and the relevant
withholding period has not expired before the sale, unless
the seller has notified the buyer that the period has not
expired.
· inserts section 19(7) to prohibit the sale of stock or
agricultural produce (such as wool or milk) obtained from
stock that the seller knows, or reasonably ought to know,
has entered land or grazed plants on land where an
agricultural chemical product has been applied to the land
or the plants and the relevant withholding period has not
expired, unless the seller has notified the buyer in writing
that the period had not expired prior to the stock entering
or grazing.
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· inserts section 19(8) prohibiting the sale of stockfood or
agricultural produce derived from plants (eg. grain) or
animals, if the seller knows or reasonably ought to know
that the plant or animal has been treated with a chemical
product and the stock food or agricultural produce was
harvested or obtained prior to the expiry of the relevant
withholding period stated on the label of the chemical
product, unless the seller has notified the buyer in writing
that the period had not expired.
· inserts section 19(9) to provide that in sub-sections (6),
(7) and (8) "agricultural produce" includes wool.
Clause 10 inserts a new section 21 prohibiting the use of a chemical product
during the transport or handling of harvested agricultural
produce, without the written permission of the owner of the
agricultural produce. This new section is to address unauthorised
treatment of agricultural produce (eg. grains) during transport or
handling, which has the potential to lead to those commodities
being contaminated upon delivery to the buyer without the
knowledge of the owner. This would create a situation whereby
the seller may be unable to comply with section 19(6) of the Act.
Clause 11 inserts a new section 32 prohibiting the use of--
· agricultural chemical products (products intended to be
used on plants and crops) on animals, except by
veterinary practitioners who are to be limited in their
professional use of such products by Order under
section 25A. This is to allow orders to be made to
prohibit the use of agricultural chemical products by
veterinary practitioners, except in particular
circumstances, eg. the treatment of an individual non-
food producing animal.
· veterinary chemical products (products intended for use
in the treatment of animals) on crops, plants, places,
buildings or things.
There is a general exception to the section when a permit is
issued which allows a specific use. Such permits are to be issued
either by the National Registration Authority or by the State.
Clause 12 repeals section 41 of the Act, which was never brought into
operation. This section provided for the chief administrator to
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issue statements as to whether stock or agricultural produce has
been damaged by agricultural spraying. The assessment of such
damage is now effectively carried out by the private sector when
such information is required to support insurance claims or used
as evidence in civil actions.
Clause 13 inserts a new section 41 creating an offence to undertake
agricultural spraying which leads to the contamination of stock
or agricultural produce derived from plants outside the target
area. The new section 41 includes a defence to a prosecution if
the stock or agricultural produce that is outside the target area is
not to be sold for human or animal consumption or used as stock
food.
Clause 14 substitutes section 42(2) of the Act with a provision which
specifies the relationship between an aerial spraying business and
a pilot who carries out aerial spraying to apply chemical
products. The previous section required a pilot to hold an aerial
spraying business licence, regardless of whether they were
employed by a business holding such a licence. The new
provision only requires a pilot to hold an aerial spraying business
licence if they are not employed by such a business.
Clause 15 inserts a new section heading "Notices to owners of defective
spraying equipment" into the Act which is more correct as a
consequence of the new section 46A.
Clause 16 inserts a new section 46A allowing authorised officers under the
Act to issue notices to operators of defective spraying equipment,
requiring that the operator, or other persons, do not use the
equipment. Agricultural spraying equipment can be determined
by the authorised officer to be defective when its operation is
likely to cause--
· harm to the operator of the equipment or other persons; or
· contamination of stock or agricultural produce or land
outside the target area.
Clause 17 amends the Act by--
· substituting a new section 52 which provides for notices
issued by authorised officers to control the sale, handling,
use, transport or disposal of contaminated agricultural
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produce, fertiliser and stock food. Notices can be issued
if the authorised officer has reasonable grounds to believe
that agricultural produce, fertiliser or stock food is
contaminated.
The previous section 52 only allowed for notices to be
issued for the control of the use and disposal of
contaminated agricultural produce, not stock food or
fertilisers.
· inserts a new section 52A which provides for regulations
to be made to control the sale, handling, transport and
identification of contaminated produce.
The current Act only provides for the control of
contaminated agricultural produce by notices issued to
individual producers or handlers. The new section 52A
allows for the general control of contaminated
agricultural produce via regulations.
Clause 18 amends section 53 which provides for the appointment of
authorised officers, to--
· extend section 53(1) which allows the appointment of an
authorised officer for the purposes of all or any provision
of the Act to include appointments for the purposes the
regulations and Orders made under the Act.
· substitutes a new section 53(3) which requires authorised
officers to produce their identity cards before exercising
any of the powers of authorised officers under the Act or
on request when exercising those powers.
Clause 19 amends section 54 to insert--
· section 54(1)(ga) which empowers authorised officers to
take photographs or make other visual or audio
recordings for the purposes of ascertaining compliance
with the Act or any regulations or Order made under the
Act.
· section 54(1)(ia) which provides for authorised officers to
seize whole containers of chemical products, fertilisers or
stock food if the process of opening and sampling such a
product would pose an unacceptable risk to public health
or safety (including the authorised officer's health or
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safety). The current Act only allows for authorised
officers to take samples or to seize chemical products if
their use is prohibited.
· section 54(1)(ja) which provides for authorised officers to
take and remove for analysis agricultural spraying
equipment. This is not provided for under the current Act
and the examination of the equipment by a suitably
qualified person may be necessary for determining
compliance with regulatory standards for such equipment.
Clause 20 inserts new sections 54A to 54I to provide authorised officers
with the power to enter and search premises with the written
consent of the occupier or, if there is evidence to indicate that an
offence has been committed, power to obtain search warrants
from a Magistrate. There is a new power to obtain Court orders
to require a person to produce documents or provide information
if there is evidence indicating that an offence has been
committed.
These powers are necessary to allow authorised officers to
effectively investigate offences under the Act (such as damage by
spray drift under section 40) which always require evidence to be
obtained of past actions and events. The Act currently provides
authorised officers with limited powers to enter, search and take
samples of chemical products, fertilisers or stock food or copies
of documents. The current Act also only allows authorised
officers to determine whether the Act is currently being complied
with. This does not allow for the effective investigation of an
offence under the Act where damage or contamination is detected
and related to a previous spraying event. Investigation into such
offences usually occurs some time after the agricultural spraying
has taken place.
· section 54A provides for authorised officers with the
written consent of the occupier to enter and inspect
premises and to seize goods or take photographs or other
recordings in connection with the alleged contravention
of the Act or Regulations or Orders made under the Act.
· section 54B provides for an authorised officer with
written permission of the Secretary to obtain a search
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warrant from a Magistrate when the authorised officer has
reasonable grounds for believing that premises contain
evidence of a contravention of the Act or Regulations or
Orders made under the Act.
· section 54C requires an authorised officer to undertake
certain actions when executing a search warrant.
· section 54D requires the authorised officer to provide
specific information to the occupier of the premises which
is the subject of a search warrant.
· section 54E provides for an authorised officer with
written permission of the Secretary to obtain a Court
order from a Magistrate when the authorised officer has
reasonable grounds for believing that a person has
contravened the Act or Regulations or Orders made under
the Act. The Court order may require a person to answer
questions or provide information or provide specified
documents relating to the alleged offence.
· section 54F requires an authorised officer who has seized
a document under Part 8 of the Act to provide a copy of
the seized document to the person from whom it was
seized.
· section 54G requires an authorised officer to return a
seized document or thing to the person from whom it was
seized within 3 months of its seizure, unless the document
or thing is subject to a court proceeding or a Magistrate
extends the 3 month period under section 54H.
· section 54H enables an authorised officer to apply to a
Magistrate for a seized document or thing to be retained
for an extended period.
· section 54I provides a person who is subject to Part 8
with the protection against self incrimination in relation to
providing information or doing things but not when they
are providing documents that are required to be produced.
Clause 21 inserts a new section 56A providing for commercial testing
laboratories to report analytical results to the chief administrator
when the testing of prescribed agricultural produce shows it to be
contaminated. This new section is to enable the monitoring of
trends in relation to specific contaminants in specific agricultural
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commodities. This is to allow for early response to avert potential
trade problems caused by contaminated agricultural produce.
Clause 22 substitutes 59(2) with new section 59(2) and (3)--
· the new section 59(2) extends the existing offence of
providing a false or misleading statement in relation to
chemical products, fertilisers or stock food or their use to
include documents or other information about a chemical
product, fertiliser or stock food or its use or to the
circumstances of the use of registered chemical products.
It also extends the term "Act" to include Regulations
made under the Act. In addition, the offence of providing
false or misleading information is extended to when a
person relying on the information is likely to contaminate
agricultural produce or stock or damage plants that are
sprayed.
· the new section 59(3) prohibits giving false or misleading
information relating to the target area to be sprayed and
surrounding areas if the information is likely to cause a
person relying on it in carrying out agricultural spraying
to commit an offence under the Act or the regulations.
Clause 23 amends the evidentiary provisions in section 71 of the Act--
· extends sub-section (2)(a) to provide that in any
proceedings for an offence against the Act or regulations,
proof is not required as to authority of an authorised
officer or any other person authorised in writing by the
chief administrator to prosecute under this Act.
· extends sub-section (3) to allow certificates issued by an
analyst of the results of analysis of samples of plants or
animals made by the analyst to be admitted as evidence.
The current section only allows for analyst's certificates in
relation to chemical products, fertilisers or stock food to
be admissible.
Clause 24 inserts section 75A to provide that the available monies from the
fees collected under the Act are to be used for purposes described
in section 75A. The available monies are monies appropriated .
The purposes for which the monies are to be used include
consideration of applications for licences and permits under the
Act, monitoring standards and performance of licence and permit
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holders, monitoring compliance with the Act, the regulations and
Orders and generally administering the Act. It is anticipated that
an appropriation adjustment will be sought in relation to this
section to--
· allow implementation of competency standards for
commercial chemical applicators (identified as necessary
by the 1999 review of the Principal Act); and
· allow administration of matters previously dealt with
under the pest control operator licensing provisions of the
Health Act 1958 (amended by the Health (Amendment)
Act 2001).
Clause 25 provides for the general regulation making power under the
Act to apply to regulations made under new section 52A
(see clause 17).
Clause 26 amends the Schedule to the Act to allow for permits to be issued
in relation to new section 32 (see clause 11).
Clause 27 amends section 33 of the Agricultural and Veterinary
Chemicals (Victoria) Act 1994 to allow the National
Registration Authority for Agricultural and Veterinary Chemicals
to issue permits in relation to new sections 19(5) and 32 (see
clauses 9 and 11).
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