An Act to provide for the control of the export of certain goods, and for related purposes
Chapter 1—Preliminary
Part 1—Preliminary
1 Short title
This Act is the Export Control Act 2020.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 6 March 2020 |
2. Sections 3 to 432 | A single time (in the Australian Capital Territory) to be fixed by Proclamation. However, if the provisions do not commence before 3 am (by legal time in the Australian Capital Territory) on 28 March 2021, they commence at that time. | 3 am (A.C.T.) 28 March 2021 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Objects of this Act
The objects of this Act are the following:
(a) to ensure that goods that are exported:
(i) meet relevant importing country requirements to enable and maintain overseas market access for goods exported from Australia; and
(ii) comply with government or industry standards or requirements relating to the goods; and
(iii) are traceable and, if necessary, can be recalled;
(b) to ensure the integrity of goods that are exported;
(c) to ensure that trade descriptions for goods that are exported are accurate;
(d) to give effect to Australia’s rights and obligations relating to goods that are exported under any international agreements to which Australia is a party.
4 Simplified outline of this Act
This Act creates a framework for regulating the export of goods, including agricultural products and food, from Australian territory.
This Act includes provisions about the application of this Act and the relationship of this Act with State and Territory laws.
Certain goods are prohibited from being exported from Australian territory, either absolutely or by sea.
The Minister may, by legislative instrument (a temporary prohibition determination), determine:
(a) that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, is prohibited absolutely for a specified period of up to 6 months; or
(b) that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, to a specified place is prohibited for a specified period of up to 6 months.
The Minister may make a temporary prohibition determination only if the Minister is satisfied that the determination is necessary:
(a) to protect human, animal or plant life or health; or
(b) to secure compliance with an Australian law (other than this Act).
The rules may prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless prescribed conditions are complied with. Conditions may be prescribed for the purpose of ensuring that importing country requirements are met or government or industry standards or requirements are complied with, or to give effect to Australia’s international obligations. The rules may require, for example:
(a) export operations in relation to prescribed goods to be carried out at an accredited property or a registered establishment, or in accordance with an approved arrangement or an export licence; or
(b) a person to hold an approved arrangement or an export licence covering prescribed goods; or
(c) a trade description or an official mark to be applied to certain goods; or
(d) a notice of intention to export a consignment of prescribed goods to be given; or
(e) a government certificate or an export permit to be in force for certain goods.
The Secretary may grant an exemption from one or more provisions of this Act in relation to prescribed goods that are to be exported in certain circumstances.
A government certificate may be issued in relation to prescribed goods and non‑prescribed goods that are to be, or that have been, exported.
The rules may make provision for and in relation to the establishment and administration of a system, or systems, of tariff rate quotas for the export of certain goods.
Authorised officers (including third party authorised officers) and other persons may exercise certain powers, including the following:
(a) conducting audits of export operations and audits in relation to the performance of functions and the exercise of powers under this Act;
(b) carrying out assessments of goods;
(c) giving directions;
(d) carrying out approved export programs for the purpose of ensuring the health and welfare of certain live animals.
A range of compliance and enforcement powers are provided, including by applying the Regulatory Powers (Standard Provisions) Act 2014.
Certain decisions under this Act may be reviewed internally and by the Administrative Review Tribunal.
The use and disclosure of information is regulated.
Fees may be charged, on a cost‑recovery basis, in relation to activities carried out by, or on behalf of, the Commonwealth in the performance of functions or the exercise of powers under this Act.
The Secretary may make rules for the purposes of this Act. The rules are a disallowable legislative instrument.
5 Act binds the Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be:
(a) prosecuted for an offence; or
(b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or
(c) given an infringement notice under Part 5 of the Regulatory Powers Act.
6 Application of this Act in Australia
General
(1) Subject to subsections (2) to (4), this Act applies in Australia, and in the exclusive economic zone adjacent to Australia, and on or in the continental shelf adjacent to Australia, in relation to:
(a) all persons or bodies (including foreign persons or bodies); and
(b) all aircraft (including foreign aircraft); and
(c) all vessels (including foreign vessels).
Note: A reference to Australia includes a reference to the coastal sea of Australia. See section 15B of the Acts Interpretation Act 1901.
Limited application in the exclusive economic zone
(2) This Act applies in an area that is, or is part of, the exclusive economic zone adjacent to Australia in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of goods that have been taken in that area.
(3) However, subsection (2) does not prevent the exercise of powers under this Act in the contiguous zone of Australia (including the external Territories) in relation to a foreign person or body, a foreign aircraft or a foreign vessel:
(a) to investigate a contravention of this Act that occurred in Australia; or
(b) to prevent a contravention of this Act occurring in Australia.
Limited application on or in the continental shelf
(4) This Act applies in an area that:
(a) is on or in the continental shelf adjacent to Australia; and
(b) is not within the exclusive economic zone adjacent to Australia;
in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of natural resources that have been harvested on the continental shelf in that area.
Note: For natural resources, see section 12.
(5) This section has effect subject to section 10.
7 Limited application of this Act outside Australia
(1) This Act applies in an area covered by subsection (2) in relation to the following:
(a) Australian nationals;
(b) Australian residents;
(c) the Commonwealth;
(d) Commonwealth bodies;
(e) Australian aircraft;
(f) Australian vessels;
(g) members of crews of Australian aircraft and Australian vessels (including persons in charge of Australian aircraft or Australian vessels).
(2) This subsection covers an area that:
(a) is outside the outer limits of the exclusive economic zone adjacent to Australia and is not on or in the continental shelf adjacent to Australia; and
(b) is not an external Territory, or the exclusive economic zone adjacent to an external Territory, or on or in the continental shelf adjacent to an external Territory.
8 Extension of this Act to external Territories and other areas
(1) Subject to subsection (2), this Act does not extend to the external Territories.
(2) The rules may extend this Act, or any provisions of this Act:
(a) to an external Territory that is prescribed by the rules; or
(b) to any of the following areas that are prescribed by the rules:
(i) the whole or a part of the exclusive economic zone adjacent to an external Territory;
(ii) the whole or a part of the area that is on or in the continental shelf adjacent to an external Territory and is not within the exclusive economic zone adjacent to that Territory; or
(c) to an area outside the Australian fishing zone in relation to which the Fisheries Management Act 1991 applies under regulations made for the purposes of section 8 of that Act.
(3) The rules may extend this Act, or any provisions of this Act, to an area adjacent to an external Territory under subparagraph (2)(b)(i) or (ii) whether or not this Act extends to that external Territory.
Note 1: The reference to this Act includes a reference to instruments made under this Act (see the definition of this Act in section 12).
Note 2: A provision of this Act that extends to an external Territory is taken to have effect in, and in relation to, the coastal sea of the Territory as if that coastal sea were part of the Territory (see subsection 15B(3) of the Acts Interpretation Act 1901).
9 Application of this Act in external Territories and other areas
General
(1) If a provision of this Act extends to an external Territory or an area adjacent to an external Territory under subsection 8(2), then subject to subsections (2) to (5), the provision applies in the external Territory or the adjacent area in relation to:
(a) all persons or bodies (including foreign persons or bodies); and
(b) all aircraft (including foreign aircraft); and
(c) all vessels (including foreign vessels).
Limited application in the contiguous zone
(2) If a provision of this Act extends to an external Territory under paragraph 8(2)(a), nothing in this Act prevents the exercise of powers under this Act in the contiguous zone adjacent to the external Territory (or in the contiguous zone adjacent to Australia) in relation to a foreign person or body, a foreign aircraft or a foreign vessel:
(a) to investigate a contravention of this Act that occurred in that Territory; or
(b) to prevent a contravention of this Act occurring in that Territory.
Limited application in the exclusive economic zone
(3) If a provision of this Act extends to an area adjacent to an external Territory under subparagraph 8(2)(b)(i), the provision applies in that area in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of goods that have been taken in that area.
(4) However, subsection (3) does not prevent the exercise of powers under this Act in the contiguous zone adjacent to the external Territory (or in the contiguous zone adjacent to Australia) in relation to a foreign person or body, a foreign aircraft or a foreign vessel for a purpose referred to in paragraph (2)(a) or (b).
Limited application on or in the continental shelf
(5) If a provision of this Act extends to an area under subparagraph 8(2)(b)(ii), the provision applies in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of natural resources that have been harvested on the continental shelf in that area.
Note: For natural resources, see section 12.
(6) This section has effect subject to section 10.
10 Rights of foreign aircraft and vessels under Convention on the Law of the Sea not affected
This Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign aircraft or foreign vessels, in accordance with the United Nations Convention on the Law of the Sea, above or in any of the following:
(a) the territorial sea of Australia (including the external Territories);
(b) the exclusive economic zone of Australia (including the external Territories);
(c) waters above the continental shelf of Australia (including the external Territories).
11 Concurrent operation of State and Territory laws
(1) This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
(2) Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:
(a) the law makes an act or omission:
(i) an offence; or
(ii) subject to a civil penalty; and
(b) that (or any similar) act or omission is also:
(i) an offence against a provision of this Act; or
(ii) subject to a civil penalty under this Act.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty:
(a) provides for a penalty that differs from the penalty provided in this Act;
(b) provides for fault elements that differ from the fault elements applicable to the offence or civil penalty provision created by this Act;
(c) provides for defences or exceptions that differ from the defences or exceptions applicable to the offence or civil penalty provision created by this Act.
Part 2—Interpretation
Division 1—Definitions
12 Definitions
In this Act:
accredited property means a property that is accredited under Chapter 3.
accredited veterinarian means a veterinarian who is accredited in accordance with rules made for the purposes of subsection 312(1).
adjacent premises warrant means a warrant issued under section 335.
aircraft means any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface.
animal includes a dead animal and any part of an animal, but does not include a human or a part of a human, whether the human is dead or alive.
animal reproductive material:
(a) means any part of an animal from which another animal can be produced; and
(b) includes an embryo, an egg or ovum, and semen.
applied, in relation to a trade description, has the meaning given by section 247.
appropriate person for premises to which an adjacent premises warrant relates, or premises entered under section 346 or 347, means:
(a) the occupier of the premises; or
(b) another person who apparently represents the occupier.
approved arrangement means an approved arrangement under Chapter 5.
approved assessor:
(a) means a person, or a person included in a class of persons, approved under subsection 281(1); and
(b) includes a person included in a class of persons specified by rules made for the purposes of section 282.
approved auditor:
(a) means a person, or a person included in a class of persons, approved under subsection 273(1); and
(b) includes a person included in a class of persons specified by rules made for the purposes of section 274.
approved export program means a program of export operations approved under subsection 311(1).
assessor means:
(a) an approved assessor; or
(b) an authorised officer whose functions and powers include carrying out an assessment of goods under Part 2 of Chapter 9.
associate of a person has a meaning affected by section 13.
auditor means:
(a) an approved auditor; or
(b) an authorised officer whose functions and powers include conducting an audit under Part 1 of Chapter 9.
Australian aircraft means an aircraft that is registered under regulations made under the Civil Aviation Act 1988.
Australia New Zealand Food Standards Code has the same meaning as in the Food Standards Australia New Zealand Act 1991.
Australian fishing zone has the same meaning as in the Fisheries Management Act 1991.
Australian law means a law of the Commonwealth, or of a State or Territory.
Australian national means:
(a) an Australian citizen; or
(b) a body corporate established by or under a law of the Commonwealth or of a State or Territory.
Australian resident means:
(a) an individual who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or
(b) a body corporate that has its principal place of business in Australia.
Australian territory has the meaning given by section 14.
Australian vessel means an Australian ship within the meaning of the Shipping Registration Act 1981.
authorised officer means (except as provided by section 324) a person who is authorised under section 291 to be an authorised officer under this Act.
Note: Section 324 provides a modified meaning of authorised officer for the purposes of Chapter 10 (compliance and enforcement).
certificate of registration, for a registered establishment, means the most recent certificate of registration for the establishment given to the occupier of the establishment under Chapter 4.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Commonwealth authorised officer means an authorised officer who is an officer or employee of a Commonwealth body.
Commonwealth body includes a Department of State, or an authority or agency, of the Commonwealth.
Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
conveyance means any of the following:
(a) an aircraft;
(b) a vessel;
(c) a vehicle;
(d) any other means of transport prescribed by the rules.
corporation means a corporation within the meaning of the Corporations Act 2001.
cost‑recovery charge means:
(a) a fee prescribed by rules made for the purposes of subsection 399(1) for a fee‑bearing activity; or
(b) a charge imposed by:
(i) the Export Charges (Imposition—Customs) Act 2015; or
(ii) the Export Charges (Imposition—Excise) Act 2015; or
(iii) the Export Charges (Imposition—General) Act 2015; or
(c) a late payment fee relating to a fee or charge described in paragraph (a) or (b).
covering, in relation to goods, includes a bottle, box, capsule, case, container, frame, glass, seal, stopper and wrapper.
de‑identified, in relation to personal information, has the same meaning as in the Privacy Act 1988.
dishonest, in relation to conduct engaged in by a person, means dishonest according to the standards of ordinary people.
economic consequences for Australia includes the following:
(a) substantial damage to Australia’s trading reputation;
(b) a restriction on, or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia.
eligible animal reproductive material means prescribed goods that are animal reproductive material.
eligible live animals means prescribed goods that are live animals.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
entered for export has the meaning given by section 15.
entrusted person means any of the following:
(a) the Minister;
(b) the Secretary;
(c) an APS employee in the Department;
(d) any other person employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with the Department;
(e) any other person who is:
(i) employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth; and
(ii) in a class of persons specified by rules made for the purposes of this subparagraph.
establishment has the same meaning as premises.
evidential material has the same meaning as in the Regulatory Powers Act.
examine includes count, gauge, grade, measure and weigh.
executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body corporate, who is concerned in, or takes part in, the management of the body corporate.
expiry date:
(a) for the accreditation of a property—has the meaning given by subsection 82(4); or
(b) for the registration of an establishment—has the meaning given by subsection 115(4); or
(c) for an approved arrangement—has the meaning given by subsection 154(4); or
(d) for an export licence—has the meaning given by subsection 194(4).
export means export from Australian territory to a place outside Australian territory.
Note: See also section 20 which provides for when goods are exported.
export business means a business that carries out export operations in relation to a kind of goods.
export licence means an export licence granted under Chapter 6.
export operations has the meaning given by section 16.
export permit means an export permit issued under Part 2 of Chapter 7.
false trade description has the meaning given by section 251.
Federal Court means the Federal Court of Australia.
fee‑bearing activities has the meaning given by subsection 399(1).
fish means aquatic vertebrates and aquatic invertebrates but does not include mammals or birds.
fit for human consumption means safe and suitable for human consumption.
food includes:
(a) any substance or thing of a kind used, or capable of being used, for human consumption (whether it is live, raw, prepared or partly prepared); and
(b) any substance or thing of a kind used, or capable of being used, as an ingredient or additive in a substance or thing referred to in paragraph (a);
whether or not the substance or thing is in a condition fit for human consumption.
foreign aircraft means an aircraft other than an Australian aircraft.
foreign person or body means any of the following:
(a) an individual who is not an Australian national or an Australian resident;
(b) a body corporate that is not an Australian national or an Australian resident;
(c) a body politic of a foreign country;
(d) a trust, where the trustee, or a majority of the trustees, are covered by any or all of the above paragraphs.
foreign vessel means a vessel other than an Australian vessel.
goods means any of the following:
(a) an animal or a plant;
(b) an article, substance or thing (including reproductive material) derived from an animal or a plant, whether or not in combination with any other article, substance or thing;
(c) food;
(d) any other article, substance or thing.
government certificate means a certificate (other than a tariff rate quota certificate) in relation to goods that are to be, or that have been, exported and that relates to any of the following:
(a) matters in respect of which a country requires certification before goods of that kind may be imported into that country from Australian territory or from a part of Australian territory;
(b) requirements of this Act that must be complied with before goods of that kind may be exported;
(c) other matters concerning goods of that kind.
husbandry activities, in relation to a live animal, means activities relating to the care and maintenance of the animal (for example, housing, daily monitoring, feeding, cleaning of facilities and administration of medication).
importing country requirement, in relation to goods that are to be imported into a country from Australian territory or from a part of Australian territory, means a requirement of that country that must be met before the goods may be imported into that country from Australian territory or from that part of Australian territory.
installation has the meaning given by section 17.
integrity has the meaning given by section 18.
International Plant Protection Convention means the International Plant Protection Convention, done at Rome on 6 December 1951, as in force from time to time.
Note: The Convention is in Australian Treaty Series 1952 No. 5 ([1952] ATS 5) and could in 2020 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
investigation warrant means:
(a) a warrant issued under section 70 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection 329(1); or
(b) a warrant signed by an issuing officer under section 71 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection 329(1).
issuing body for a government certificate in relation to a kind of goods means a person or body that may issue a government certificate in relation to goods of that kind under section 63.
issuing officer means:
(a) a magistrate; or
(b) a Judge of a court of a State or Territory; or
(c) a Judge of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
label includes a tag, band, ticket, brand and pictorial or other descriptive matter.
landing place means any place where an aircraft can land, including:
(a) an area of land or water; and
(b) an area on a building or a vessel.
late payment fee has the meaning given by section 403.
manager of a property means the person who is responsible for the day‑to‑day management of the property.
mark includes a stamp, seal and label.
monitoring warrant means a warrant issued under section 32 of the Regulatory Powers Act as it applies in relation to this Act.
natural resources has the same meaning as in paragraph 4 of Article 77 of the United Nations Convention on the Law of the Sea.
Note: Paragraph 4 of Article 77 of the Convention provides as follows:
The natural resources referred to in this Part consist of the mineral and other non‑living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
nominated export permit issuer, in relation to a kind of prescribed goods, means a person who:
(a) manages or controls export operations in relation to goods of that kind that are covered by an approved arrangement; and
(b) is nominated in the approved arrangement as a person who may issue export permits for goods of that kind.
Note: A nominated export permit issuer in relation to a kind of prescribed goods may only issue export permits for goods of that kind if the power to issue export permits for goods of that kind has been subdelegated to the nominated export permit issuer under paragraph 288(2)(c).
non‑prescribed goods means goods of a kind that are not prescribed goods.
notice of intention to export means a notice under section 243.
occupier, of an establishment where export operations in relation to goods are, were or will be carried out, has the meaning given by section 19.
official mark means a mark that is an official mark for the purposes of this Act under rules made for the purposes of subsection 255(1).
official marking device has the meaning given by subsection 257(1).
permanently prohibited export means an export that is prohibited by section 23A.
permanently prohibited goods means goods the export of which is prohibited absolutely by section 23.
person has a meaning affected by sections 421, 422 and 423.
personal information has the same meaning as in the Privacy Act 1988.
plant means a live plant or a dead plant, and includes any part of a plant.
port includes a harbour.
PPSA security interest means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.
Note 1: The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:
(a) section 8 (interests to which the Act does not apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.
premises includes the following:
(a) a structure, building or conveyance;
(b) a place (whether or not enclosed or built on), including a place situated underground or under water;
(c) a part of a thing referred to in paragraph (a) or (b).
Note: Premises does not include a conveyance in Part 4 of Chapter 10 (compliance and enforcement) (see section 332).
prepare, in relation to goods, includes the following:
(a) admission of animals for slaughter, being animals from which goods are to be derived;
(b) slaughter or kill animals from which goods are to be derived;
(c) dress carcases from which goods are to be derived;
(d) take (whether from the wild or otherwise):
(i) fish; or
(ii) fish from which goods are to be derived;
(e) process, pack and store goods;
(f) treat goods;
(g) handle and load goods.
Note: Take, in relation to fish, means catch, capture, or harvest (see the definition of take in this section).
prescribed agriculture law means a law (other than this Act) that is administered by the Minister and is prescribed by the rules.
prescribed export conditions means conditions prescribed by rules made for the purposes of section 29.
prescribed goods means goods of a kind prescribed by rules made for the purposes of subsection 28(1), but does not include a kind of goods in the circumstances prescribed by rules made for the purposes of subsection 28(4).
Note: The rules may prescribe a class of goods for the purposes of subsection 28(1) or (4).
produce, in relation to goods, includes the following:
(a) pick or harvest (whether from the wild or otherwise):
(i) goods; or
(ii) goods from which goods are to be derived;
(b) capture or take (whether from the wild or otherwise):
(i) goods other than fish; or
(ii) goods (other than fish) from which goods are to be derived;
(c) propagate, rear, keep or breed (including as part of aquaculture operations):
(i) fish; or
(ii) fish from which goods are to be derived;
(d) breed, or carry out husbandry activities in relation to:
(i) live animals; or
(ii) live animals from which goods are to be derived;
(e) grow:
(i) plants; or
(ii) plants from which goods are to be derived.
property has the same meaning as premises.
protected information has the meaning given by section 397F.
protected person has the meaning given by subsection 430(4).
registered establishment means an establishment that is registered under Chapter 4.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
related provision means the following:
(a) a provision of this Act that creates an offence;
(b) a civil penalty provision of this Act;
(c) a provision of the Crimes Act 1914 or the Criminal Code that relates to this Act and creates an offence.
relevant Commonwealth liability means:
(a) a cost‑recovery charge that is due and payable; or
(b) a pecuniary penalty, or other liability for an amount, imposed by or under a prescribed agriculture law.
Note: A relevant Commonwealth liability of a person is taken to have been paid for the purposes of a provision of this Act in certain circumstances (see section 431).
relevant court means:
(a) the Federal Court; or
(b) the Federal Circuit and Family Court of Australia (Division 2); or
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
relevant information means information obtained or generated by a person in the course of or for the purposes of:
(a) performing functions or duties, or exercising powers, under this Act; or
(b) assisting another person to perform functions or duties, or exercise powers, under this Act.
relevant person:
(a) for an audit under Part 1 of Chapter 9—has the meaning given by section 269; or
(b) for an assessment of goods under Part 2 of Chapter 9—has the meaning given by section 278; or
(c) for a reviewable decision referred to in column 1 of an item in the table in subsection 381(1)—means the person referred to in column 3 of that item; or
(d) for a reviewable decision prescribed by rules made for the purposes of subsection 381(2)—means the person specified by the rules as the relevant person for that decision.
relevant premises, in Part 5 of Chapter 10, has the meaning given by section 345.
reviewable decision has the meaning given by subsections 381(1) and (2).
rules means rules made under section 432.
Secretary means the Secretary of the Department.
State or Territory authorised officer means an authorised officer who is an officer or employee of a State or Territory body.
State or Territory body includes a Department of State, or an authority or agency, of a State or Territory.
take, in relation to fish, means catch, capture, or harvest.
tariff rate quota certificate means a certificate provided for by rules made for the purposes of section 264.
temporary prohibition determination means a determination made under paragraph 24(1)(a) or (b).
third party authorised officer means a person who is authorised under paragraph 291(6)(a) to be a third party authorised officer under this Act.
this Act includes:
(a) legislative instruments made under this Act; and
(b) the Regulatory Powers Act as it applies in relation to this Act.
trade description has the meaning given by subsections 246(1) and (2).
United Nations Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, as in force for Australia from time to time.
Note: The Convention is in Australian Treaty Series 1994 No. 31 ([1994] ATS 31) and could in 2020 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
vessel:
(a) means any kind of vessel used in navigation by water, however propelled or moved, including the following:
(i) a barge or other floating craft;
(ii) an air‑cushion vehicle, or other similar craft, used wholly or primarily in navigation by water; and
(b) includes:
(i) an installation; and
(ii) any floating structure.
13 Meaning of associate
(1) Associate of a person (the first person) includes each of the following:
(a) a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of:
(i) the first person; or
(ii) any corporation of which the first person is an officer or employee or in which the first person holds shares;
(b) a spouse, de facto partner, child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of the first person;
(c) a child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of a spouse or de facto partner of the first person;
(d) any other person not mentioned in paragraph (a), (b) or (c) who is or was:
(i) directly or indirectly concerned in; or
(ii) in a position to control or influence the conduct of;
a business or undertaking of:
(iii) the first person; or
(iv) a corporation of which the first person is an officer or employee, or in which the first person holds shares;
(e) a corporation:
(i) of which the first person, or any of the other persons mentioned in paragraphs (a), (b), (c) and (d), is an officer or employee; or
(ii) in which the first person, or any of those other persons, holds shares;
(f) if the first person is a body corporate—another body corporate that is a related body corporate (within the meaning of the Corporations Act 2001) of the first person.
(2) Without limiting who is a child of another person for the purposes of this Act, a person is the child of another person if the person is:
(a) a stepchild or adopted child of the other person; or
(b) a child of the other person within the meaning of the Family Law Act 1975.
(3) Without limiting who is a stepchild of another person for the purposes of this Act, a child of a de facto partner of the other person is the stepchild of the other person if the child would be the other person’s stepchild except that the other person is not legally married to the partner.
(4) Without limiting who is a parent of another person for the purposes of this Act, a person is the parent of another person if the other person is a child of the person because of the definition of child in subsection (2).
(5) For the purposes of this Act, if one person is the child of another person because of the definition of child in subsection (2), relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
14 Meaning of Australian territory
A reference in a provision of this Act to Australian territory is a reference to:
(a) Australia; and
(b) the exclusive economic zone adjacent to Australia; and
(c) the waters above the continental shelf adjacent to Australia; and
(d) each external Territory to which the provision extends under paragraph 8(2)(a); and
(e) each area to which the provision extends under subparagraph 8(2)(b)(i); and
(f) the waters above each area to which the provision extends under subparagraph 8(2)(b)(ii); and
(g) each area to which the provision extends under paragraph 8(2)(c).
Note: Under subsection 8(2), the rules may extend this Act, or any provisions of this Act, to an external Territory and to certain other areas.
15 Meaning of entered for export
Goods are entered for export if, in the course of the preparation or production of the goods for export, the goods are presented to, or information about the goods is given to:
(a) an authorised officer; or
(b) another person who is authorised to exercise powers or perform functions under this Act in relation to the goods;
for the purpose of the authorised officer or other person exercising powers or performing functions under this Act in relation to the goods.
16 Meaning of export operations
Export operations means any of the following:
(a) operations to export goods;
(b) operations to produce, or prepare, goods for export;
(c) operations (other than operations referred to in paragraph (a) or (b)) in relation to goods for export before they are exported;
(d) operations in relation to goods that have been exported up until the delivery of the goods to their final overseas destination or, in the case of live animals intended to be slaughtered, up until and including the point of slaughter;
(e) any other operations in relation to the export of goods.
Examples of operations:
(a) for the purposes of paragraph (b)—breeding or carrying out husbandry activities in relation to livestock from which meat for export is to be derived;
(b) for the purposes of paragraph (c)—transporting goods, applying a trade description or official mark to goods, carrying out certification functions in relation to goods, and issuing an export permit for a kind of prescribed goods;
(c) for the purposes of paragraph (d)—monitoring the goods during their journey to the importing country and up until their delivery to their final overseas destination or, in the case of live animals intended to be slaughtered, up until and including the point of slaughter;
(d) for the purposes of paragraph (e)—operations for the purpose of assuring the supply chain relating to certain prescribed goods up until their delivery to their final overseas destination, and manufacturing official marks or official marking devices.
Note: See also section 20 which provides for when goods are exported.
17 Meaning of installation
An installation is a structure that:
(a) is able:
(i) to float or to be floated; and
(ii) to move, or to be moved, as an entity from one place to another; and
(b) is, or is to be, used wholly or principally in:
(i) exploring or exploiting natural resources (such as fish or minerals) with equipment on, or forming part of, the structure; or
(ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i) of this paragraph; and
(c) either:
(i) is attached to, or resting on, the seabed; or
(ii) is attached semipermanently or permanently to a structure that is attached to, or resting on, the seabed.
Note: An installation is a vessel for the purposes of this Act (see paragraph (b) of the definition of vessel in section 12).
18 Meaning of integrity
The integrity of goods is ensured if the identity or composition of the goods, in relation to any condition, restriction or other description that applies in relation to the goods:
(a) is ascertainable; and
(b) is maintained without loss, addition or substitution; and
(c) is not confused with that of any other goods.
19 Meaning of occupier
(1) The occupier of a registered establishment is the person in whose name the establishment is registered.
(2) An occupier of an establishment (other than a registered establishment) where export operations in relation to goods are, were or will be carried out, is:
(a) the person that operates, operated or will operate the business of carrying out export operations in relation to goods at the establishment; or
(b) a person that manages or controls, managed or controlled or will manage or control export operations carried out in relation to goods at the establishment.
Division 2—Other interpretation provisions
20 When goods are exported
(1) For the purposes of this Act, goods are exported when the conveyance transporting the goods from Australian territory commences its journey to a place outside Australian territory (whether or not that place is the intended final overseas destination for the goods).
Note: If goods are transported between landing places or ports in Australian territory, the goods are exported when the conveyance transporting the goods commences its journey from the last landing place or port in Australian territory before leaving Australian territory.
(2) To avoid doubt, subsection (1) applies in relation to goods if:
(a) the goods:
(i) were taken from waters (other than internal waters) in Australian territory; or
(ii) were harvested on the continental shelf adjacent to Australia; or
(iii) were harvested in an area on the continental shelf adjacent to an external Territory to which the Act extends under subparagraph 8(2)(b)(ii); and
(b) after being taken or harvested, the goods:
(i) were loaded onto a conveyance in Australian territory for transportation to a place outside Australian territory; or
(ii) were taken to a place outside Australian territory; and
(c) the goods were not unloaded at any time at a place on land in Australian territory.
21 Persons who manage or control export operations
For the purposes of this Act, a person is taken to be a person who manages or controls, or would manage or control, export operations if:
(a) the person has, or would have, authority to direct the export operations, or an important or substantial part of the export operations; or
(b) the person has, or would have, authority to direct another person who has, or would have, authority of the kind referred to in paragraph (a) in the exercise of that authority or proposed authority.
Chapter 2—Exporting goods
Part 1—Goods and exports
Division 1—Introduction
22 Simplified outline of this Part
Certain goods are prohibited absolutely from being exported from Australian territory. These goods are called permanently prohibited goods.
On and after 1 May 2028, sheep are prohibited from being exported from Australian territory by sea. Such exports are called permanently prohibited exports.
The Minister may, by legislative instrument (a temporary prohibition determination), determine:
(a) that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, is prohibited absolutely for a specified period of up to 6 months; or
(b) that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, to a specified place is prohibited for a specified period of up to 6 months.
The Minister may make a temporary prohibition determination only if the Minister is satisfied that the determination is necessary:
(a) to protect human, animal or plant life or health; or
(b) to secure compliance with an Australian law (other than this Act).
A temporary prohibition determination may be varied to extend the temporary prohibition period for further periods of up to 6 months.
The rules may prescribe kinds of goods (prescribed goods) for the purposes of this Act. In deciding whether to prescribe goods that are not animals, plants or food, the Secretary may have regard to relevant matters, including importing country requirements, sanitary matters, Australian laws and standards, Australia’s international rights and obligations and international standards.
The rules may:
(a) prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless conditions prescribed by the rules are complied with; or
(b) prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, to a specified place unless conditions prescribed by the rules are complied with.
A person may commit an offence or be liable to a civil penalty if:
(a) permanently prohibited goods, or goods in relation to which a temporary prohibition determination applies, are exported; or
(aa) goods are exported, and the export is a permanently prohibited export; or
(b) goods are exported, and intended to be imported into a particular place, and the export of the goods to that place is prohibited by a temporary prohibition determination; or
(c) goods are exported in contravention of prescribed export conditions; or
(d) the person makes false or misleading representations about goods that are entered for export.
Division 2—Prohibited goods and exports
Subdivision A—Permanently prohibited goods and exports
23 Goods that are prohibited from export absolutely
The export from Australian territory of split vetch (being split seed of Vicia sativa) is prohibited absolutely.
Note 1: For Australian territory, see section 14.
Note 2: Division 4 sets out offences and civil penalty provisions for exporting permanently prohibited goods.
23A Goods that are prohibited from export by sea
On and after 1 May 2028, the export from Australian territory of sheep (including the young of that animal) by sea is prohibited.
Note 1: For Australian territory, see section 14.
Note 2: Division 4 sets out offences and civil penalty provisions for exporting sheep in contravention of this section.
Subdivision B—Temporarily prohibited goods
24 Minister may temporarily prohibit export of goods from Australian territory, or from a part of Australian territory, for a period
(1) The Minister may, by legislative instrument, determine:
(a) that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, is prohibited absolutely for a specified period of up to 6 months; or
(b) that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, to a specified place is prohibited for a specified period of up to 6 months.
Note 1: A determination that is in force under paragraph (1)(a) or (b) is called a temporary prohibition determination.
Note 2: The temporary prohibition period may be extended under section 25.
Note 3: For Australian territory, see section 14.
(2) The Minister may make a determination under paragraph (1)(a) or (b) only if the Minister is satisfied that the determination is necessary:
(a) to protect human, animal or plant life or health; or
(b) to secure compliance with an Australian law (other than this Act).
(3) A determination under paragraph (1)(a) or (b) must set out the reasons for making the determination.
Note: Division 4 sets out offences and civil penalty provisions for exporting goods in relation to which a temporary prohibition determination applies.
25 Variation of temporary prohibition determination
(1) The Minister may vary a temporary prohibition determination to extend the period specified in the determination for a further period of up to 6 months.
(2) The Minister may vary a temporary prohibition determination under subsection (1) only if the Minister is satisfied that the variation is necessary:
(a) to protect human, animal or plant life or health; or
(b) to secure compliance with an Australian law (other than this Act).
(3) The Minister may vary a temporary prohibition determination under subsection (1) more than once.
(4) A determination varying a temporary prohibition determination must set out the reasons for making the variation.
(5) This section does not otherwise limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to a temporary prohibition determination.
26 Effect of temporary prohibition determination on government certificate or export permit
Effect on government certificate
(1) If:
(a) a government certificate has been, or is, issued in relation to a kind of goods that are to be, or that have been, exported; and
(b) a temporary prohibition determination applies in relation to goods of that kind;
then the government certificate is taken to have been revoked on the date the temporary prohibition determination takes effect or immediately after the certificate is issued (whichever is later).
Effect on export permit
(2) If:
(a) an export permit has been, or is, issued for a kind of prescribed goods that are to be exported; and
(b) a temporary prohibition determination applies in relation to goods of that kind;
then the export permit is taken to have been revoked on the date the temporary prohibition determination takes effect or immediately after the permit is issued (whichever is later).
27 Temporary prohibition determination prevails over inconsistent rules
If a temporary prohibition determination is inconsistent with the rules:
(a) the determination prevails; and
(b) the rules have no effect to the extent that they are inconsistent with the determination.
Division 3—Prescribed goods and conditions of export
28 Rules may prescribe goods for the purposes of this Act
(1) The rules may prescribe kinds of goods (prescribed goods) for the purposes of this Act.
(2) Rules made for the purposes of subsection (1) may prescribe a kind of goods by reference to particular circumstances, including, for example:
(a) a place to which the goods are, or are intended to be, exported; and
(b) the intended use of the goods.
(3) In deciding whether to prescribe a kind of goods referred to in paragraph (d) of the definition of goods in section 12, the Secretary may have regard to the following matters:
(a) any importing country requirements relating to goods of that kind;
(b) sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to goods of that kind;
(c) any Australian laws and standards relating to goods of that kind;
(d) Australia’s rights and obligations relating to goods of that kind under any international agreements to which Australia is a party;
(e) any international standards relating to goods of that kind;
(f) any other matter the Secretary considers relevant.
(4) The rules may provide that a kind of goods is taken not to be prescribed goods for the purposes of this Act in the circumstances prescribed by the rules.
29 Rules may prohibit export of prescribed goods subject to conditions
(1) The rules may:
(a) prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless conditions prescribed by the rules are complied with; or
(b) prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, to a specified place unless conditions prescribed by the rules are complied with.
Note 1: The rules are made by the Secretary under section 432. They are a disallowable legislative instrument and are subject to sunsetting under the Legislation Act 2003.
Note 2: The Minister may, by legislative instrument, give directions to the Secretary in relation to the performance of the Secretary’s functions or the exercise of the Secretary’s powers in making rules under section 432 (see subsection 289(1)).
Note 3: For Australian territory, see section 14.
Note 4: Division 4 sets out offences and civil penalty provisions for exporting prescribed goods in contravention of prescribed export conditions.
(2) Without limiting subsection (1), the rules may prescribe conditions in relation to the export of prescribed goods, or the export of prescribed goods to a specified place, that:
(a) require export operations to be carried out in relation to the goods:
(i) at an accredited property; or
(ii) at a registered establishment; or
(iii) at another kind of premises prescribed by the rules; or
(iv) in accordance with an approved arrangement; or
(v) in accordance with an export licence; or
(vi) in any other way prescribed by the rules; or
(b) require the exporter to hold one or more of the following:
(i) an approved arrangement covering the goods;
(ii) an export licence covering the goods;
(iii) a government certificate in relation to the goods;
(iv) an export permit for the goods;
(v) another kind of permission, consent or approval, granted as prescribed by the rules, to export the goods; or
(c) relate to export operations to be carried out in relation to the goods, including in relation to the following matters:
(i) premises, equipment and facilities to be used to produce or prepare the goods;
(ii) hygiene;
(iii) loading and transport of the goods;
(iv) identification, tracing, recall and transfer of the goods;
(v) ensuring the integrity of the goods;
(vi) trade descriptions;
(vii) official marks.
(3) Also, without limiting subsection (1), the rules may prescribe conditions in relation to the export of prescribed goods, or the export of prescribed goods to a specified place, that are required to be complied with in respect of matters or things not related to the goods themselves.
(4) Despite subsection 14(2) of the Legislation Act 2003, rules made for the purposes of this section may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing, as in force or existing from time to time, if the instrument or other writing is published on the Department’s website.
Note: The Department’s website is http://www.agriculture.gov.au.
Division 4—Offences and civil penalty provisions
30 Exporting goods that are subject to prohibition on export—basic contravention
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) any of the following applies:
(i) the goods are permanently prohibited goods;
(ii) the export is a permanently prohibited export;
(iii) the export of the goods is prohibited absolutely by a temporary prohibition determination.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
31 Exporting goods that are subject to prohibition on export—intention to obtain commercial advantage
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) any of the following applies:
(i) the goods are permanently prohibited goods;
(ii) the export is a permanently prohibited export;
(iii) the export of the goods is prohibited absolutely by a temporary prohibition determination; and
(c) the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty:
(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or
(b) if the person is a body corporate—the amount under section 50A.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).
Alternative verdict
(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 30(2), if:
(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 30(2); and
(c) the defendant has been accorded procedural fairness in relation to that finding of guilt.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a) if the person is an individual—4,000 penalty units; or
(b) if the person is a body corporate—the amount under section 50A.
32 Exporting goods that are subject to prohibition on export—economic consequences for Australia
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) any of the following applies:
(i) the goods are permanently prohibited goods;
(ii) the export is a permanently prohibited export;
(iii) the export of the goods is prohibited absolutely by a temporary prohibition determination; and
(c) the export of the goods causes, or has the potential to cause, economic consequences for Australia.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty:
(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or
(b) if the person is a body corporate—the amount under section 50A.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).
Alternative verdict
(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 30(2), if:
(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 30(2); and
(c) the defendant has been accorded procedural fairness in relation to that finding of guilt.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a) if the person is an individual—4,000 penalty units; or
(b) if the person is a body corporate—the amount under section 50A.
33 Conveying or possessing goods that are subject to prohibition on export and are intended to be exported etc.
Person intends to export goods
(1) A person contravenes this subsection if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the person intends to export the goods; and
(c) any of the following applies:
(i) the goods are permanently prohibited goods;
(ii) the export is a permanently prohibited export;
(iii) the export of the goods is prohibited absolutely by a temporary prohibition determination.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
Person knows that goods are intended to be exported
(5) A person contravenes this subsection if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the person knows that the goods are intended to be exported; and
(c) any of the following applies:
(i) the goods are permanently prohibited goods;
(ii) the export is a permanently prohibited export;
(iii) the export of the goods is prohibited absolutely by a temporary prohibition determination.
Note: The physical elements of an offence against subsection (6) are set out in this subsection (see section 370).
Fault‑based offence
(6) A person commits an offence if the person contravenes subsection (5).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(7) For the purposes of subsection (6), strict liability applies to paragraph (5)(c).
Civil penalty provision
(8) A person is liable to a civil penalty if the person contravenes subsection (5).
Civil penalty: 960 penalty units.
34 Exporting goods to a temporarily prohibited place—basic contravention
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and
(c) the export of the goods to that place is prohibited by a temporary prohibition determination.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
35 Exporting goods to a temporarily prohibited place—intention to obtain commercial advantage
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and
(c) the export of the goods to that place is prohibited by a temporary prohibition determination; and
(d) the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods to that place.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty:
(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or
(b) if the person is a body corporate—the amount under section 50A.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).
Alternative verdict
(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 34(2), if:
(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 34(2); and
(c) the defendant has been accorded procedural fairness in relation to that finding of guilt.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a) if the person is an individual—4,000 penalty units; or
(b) if the person is a body corporate—the amount under section 50A.
36 Exporting goods to a temporarily prohibited place—economic consequences for Australia
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and
(c) the export of the goods to that place is prohibited by a temporary prohibition determination; and
(d) the export of the goods to that place causes, or has the potential to cause, economic consequences for Australia.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty:
(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or
(b) if the person is a body corporate—the amount under section 50A.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).
Alternative verdict
(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 34(2), if:
(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 34(2); and
(c) the defendant has been accorded procedural fairness in relation to that finding of guilt.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a) if the person is an individual—4,000 penalty units; or
(b) if the person is a body corporate—the amount under section 50A.
37 Conveying or possessing goods that are intended to be exported to a temporarily prohibited place etc.
Person intends to export goods to temporarily prohibited place
(1) A person contravenes this subsection if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the person intends to export the goods to a particular place; and
(c) the export of the goods to that place is prohibited by a temporary prohibition determination.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
Person knows that goods are intended to be exported to temporarily prohibited place
(5) A person contravenes this subsection if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the person knows that the goods are intended to be exported to a particular place; and
(c) the export of the goods to that place is prohibited by a temporary prohibition determination.
Note: The physical elements of an offence against subsection (6) are set out in this subsection (see section 370).
Fault‑based offence
(6) A person commits an offence if the person contravenes subsection (5).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(7) For the purposes of subsection (6), strict liability applies to paragraph (5)(c).
Civil penalty provision
(8) A person is liable to a civil penalty if the person contravenes subsection (5).
Civil penalty: 960 penalty units.
38 Exporting prescribed goods—non‑compliance with prescribed export conditions—basic contravention
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the goods are prescribed goods; and
(c) the export of the goods is prohibited unless prescribed export conditions are complied with; and
(d) prescribed export conditions were not complied with.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (c) and (d).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
39 Exporting prescribed goods—non‑compliance with prescribed export conditions—intention to obtain commercial advantage
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the goods are prescribed goods; and
(c) the export of the goods is prohibited unless prescribed export conditions are complied with; and
(d) prescribed export conditions were not complied with; and
(e) the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty:
(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or
(b) if the person is a body corporate—the amount under section 50A.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (c) and (d).
Alternative verdict
(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38(2), if:
(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38(2); and
(c) the defendant has been accorded procedural fairness in relation to that finding of guilt.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a) if the person is an individual—4,000 penalty units; or
(b) if the person is a body corporate—the amount under section 50A.
40 Exporting prescribed goods—non‑compliance with prescribed export conditions—economic consequences for Australia
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the goods are prescribed goods; and
(c) the export of the goods is prohibited unless prescribed export conditions are complied with; and
(d) prescribed export conditions were not complied with; and
(e) the export of the goods causes, or has the potential to cause, economic consequences for Australia.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty:
(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or
(b) if the person is a body corporate—the amount under section 50A.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (c) and (d).
Alternative verdict
(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38(2), if:
(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38(2); and
(c) the defendant has been accorded procedural fairness in relation to that finding of guilt.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a) if the person is an individual—4,000 penalty units; or
(b) if the person is a body corporate—the amount under section 50A.
41 Conveying or possessing prescribed goods that are intended to be exported in contravention of conditions etc.
Person intends to export goods in contravention of conditions
(1) A person contravenes this subsection if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the goods are prescribed goods; and
(c) the export of the goods is prohibited unless prescribed export conditions are complied with; and
(d) the person intends to export the goods; and
(e) the export of the goods would contravene the prescribed export conditions.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
Goods are intended to be exported in contravention of conditions
(4) A person contravenes this subsection if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the goods are prescribed goods; and
(c) the export of the goods is prohibited unless prescribed export conditions are complied with; and
(d) the person knows that the goods are intended to be exported; and
(e) the export of the goods would contravene the prescribed export conditions.
Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 370).
Fault‑based offence
(5) A person commits an offence if the person contravenes subsection (4).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
Civil penalty provision
(6) A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 960 penalty units.
42 Exporting prescribed goods to a particular place—non‑compliance with prescribed export conditions—basic contravention
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the goods are prescribed goods; and
(c) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and
(d) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and
(e) prescribed export conditions were not complied with.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (d) and (e).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
43 Exporting prescribed goods to a particular place—non‑compliance with prescribed export conditions—intention to obtain commercial advantage
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the goods are prescribed goods; and
(c) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and
(d) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and
(e) prescribed export conditions were not complied with; and
(f) the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods to that place.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty:
(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or
(b) if the person is a body corporate—the amount under section 50A.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (d) and (e).
Alternative verdict
(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 42(2), if:
(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 42(2); and
(c) the defendant has been accorded procedural fairness in relation to that finding of guilt.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a) if the person is an individual—4,000 penalty units; or
(b) if the person is a body corporate—the amount under section 50A.
44 Exporting prescribed goods to a particular place—non‑compliance with prescribed export conditions—economic consequences for Australia
(1) A person contravenes this subsection if:
(a) the person exports goods; and
(b) the goods are prescribed goods; and
(c) the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and
(d) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and
(e) prescribed export conditions were not complied with; and
(f) the export of the goods to that place causes, or has the potential to cause, economic consequences for Australia.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty:
(a) if the person is an individual—imprisonment for 10 years or 2,000 penalty units, or both; or
(b) if the person is a body corporate—the amount under section 50A.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b), (d) and (e).
Alternative verdict
(4) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 42(2), if:
(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 42(2); and
(c) the defendant has been accorded procedural fairness in relation to that finding of guilt.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty:
(a) if the person is an individual—4,000 penalty units; or
(b) if the person is a body corporate—the amount under section 50A.
45 Conveying or possessing prescribed goods that are intended to be exported to a particular place in contravention of conditions etc.
Person intends to export goods to prohibited place in contravention of conditions
(1) A person contravenes this subsection if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the goods are prescribed goods; and
(c) the export of the goods to a particular place is prohibited unless prescribed export conditions are complied with; and
(d) the person intends to export the goods to that place; and
(e) the export of the goods to that place would contravene the prescribed export conditions.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
Goods are intended to be exported to prohibited place in contravention of conditions
(4) A person contravenes this subsection if:
(a) the person conveys, or has in the person’s possession, goods; and
(b) the goods are prescribed goods; and
(c) the export of the goods to a particular place is prohibited unless prescribed export conditions are complied with; and
(d) the person knows that the goods are intended to be exported to that place; and
(e) the export of the goods to that place would contravene the prescribed export conditions.
Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 370).
Fault‑based offence
(5) A person commits an offence if the person contravenes subsection (4).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
Civil penalty provision
(6) A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 960 penalty units.
46 Producing or preparing prescribed goods or other goods at certain premises in contravention of conditions—general
(1) A person contravenes this subsection if:
(a) the person is:
(i) the occupier of a registered establishment; or
(ii) the manager of an accredited property; or
(iii) the occupier of premises other than a registered establishment or an accredited property; and
(b) goods are produced or prepared at the registered establishment, accredited property or other premises; and
(c) the goods are prescribed goods; and
(d) the goods are exported after being produced or prepared at the registered establishment, accredited property or other premises (with or without further preparation); and
(e) the export of the goods is prohibited unless prescribed export conditions are complied with; and
(f) one or more of the prescribed export conditions applies in relation to:
(i) the person; or
(ii) the registered establishment, accredited property or other premises; or
(iii) the production or preparation of the goods at the registered establishment, accredited property or other premises; and
(g) one or more of those prescribed export conditions is contravened.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(c), (e), (f) and (g).
Strict liability offence
(4) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
47 Producing or preparing prescribed goods or other goods at certain premises in contravention of conditions—goods to be exported to a particular place
(1) A person contravenes this subsection if:
(a) the person is:
(i) the occupier of a registered establishment; or
(ii) the manager of an accredited property; or
(iii) the occupier of premises other than a registered establishment or an accredited property; and
(b) goods are produced or prepared at the registered establishment, accredited property or other premises; and
(c) the goods are prescribed goods; and
(d) the goods are exported to a particular place after being produced or prepared at the registered establishment, accredited property or other premises (with or without further preparation); and
(e) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and
(f) one or more of the prescribed export conditions applies in relation to:
(i) the person; or
(ii) the registered establishment, accredited property or other premises; or
(iii) the production or preparation of the goods at the registered establishment, accredited property or other premises; and
(g) one or more of those prescribed export conditions is contravened.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(c), (e), (f) and (g).
Strict liability offence
(4) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
48 Making false or misleading representation about prescribed goods that are entered for export—general
(1) A person contravenes this subsection if:
(a) goods are entered for export by the person; and
(b) the goods are prescribed goods; and
(c) the export of the goods is prohibited unless prescribed export conditions are complied with; and
(d) at the time the goods are entered for export:
(i) the person represents (either expressly or by necessary implication) that the prescribed export conditions applicable, at or before that time, in relation to the export of goods have been complied with; and
(ii) the person does so knowing that the representation is false or misleading.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b) and (c).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
49 Making false or misleading representation about prescribed goods that are entered for export to a particular place
(1) A person contravenes this subsection if:
(a) goods are entered for export by the person; and
(b) the goods are prescribed goods; and
(c) the goods are to be exported to a particular place; and
(d) the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and
(e) at the time the goods are entered for export:
(i) the person represents (either expressly or by necessary implication) that the prescribed export conditions applicable, at or before that time, in relation to the export of goods to that place have been complied with; and
(ii) the person does so knowing that the representation is false or misleading.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b) and (d).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
50 Making false or misleading representation about non‑prescribed goods that are entered for export
(1) A person contravenes this subsection if:
(a) goods are entered for export by the person; and
(b) the goods are non‑prescribed goods; and
(c) at the time the goods are entered for export:
(i) the person makes a representation (either expressly or by necessary implication) in relation to any matters that are to be stated in a government certificate in relation to the goods (for example that the goods meet an importing country requirement relating to the goods); and
(ii) the person does so knowing that the representation is false or misleading.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 600 penalty units.
50A Penalties for certain contraventions by bodies corporate
(1) This section has effect for the purposes of the following provisions:
(a) subsections 31(2) and (5);
(b) subsections 32(2) and (5);
(c) subsections 35(2) and (5);
(d) subsections 36(2) and (5);
(e) subsections 39(2) and (5);
(f) subsections 40(2) and (5);
(g) subsections 43(2) and (5);
(h) subsections 44(2) and (5);
(i) subsections 217(2), (4), (6) and (8).
(2) The amount of the penalty for a contravention by the body corporate (the first body) of a provision referred to in subsection (1) is an amount not more than the greatest of the following:
(a) 20,000 penalty units;
(b) if the first body, and any related body corporate of the first body, has obtained, directly or indirectly, a benefit that is reasonably attributable to the conduct constituting the contravention, and the relevant court can determine the value of that benefit—3 times the value of that benefit;
(c) if the relevant court cannot determine the value of a benefit referred to in paragraph (b) or no such benefit has been obtained—10% of the annual turnover of the first body during the period (the turnover period) of 12 months ending at the end of the month in which the first body committed, or began committing, the contravention.
(3) For the purposes of this section, the annual turnover of the first body, during the turnover period, is the sum of the values of all the supplies that the first body, and any related body corporate of the first body, have made, or are likely to make, during that period, other than the following supplies:
(a) supplies made from the first body to any related body corporate of the first body;
(b) supplies made from any related body corporate of the first body to the first body;
(c) supplies that are input taxed;
(d) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);
(e) supplies that are not made in connection with an enterprise that the first body carries on.
(4) Expressions used in subsection (3) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.
(5) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001.
Part 2—Exemptions
Division 1—Introduction
51 Simplified outline of this Part
The Secretary may grant an exemption from one or more provisions of this Act in relation to prescribed goods that are to be exported:
(a) as a commercial sample; or
(b) for experimental purposes; or
(c) in exceptional circumstances; or
(d) in special commercial circumstances; or
(e) in other circumstances prescribed by the rules.
The Secretary may also grant an exemption from one or more provisions of this Act in relation to prescribed goods that are to be exported to a particular country if the Secretary is satisfied that it is not necessary for those provisions to be complied with for the purpose of ensuring that importing country requirements relating to the goods are met.
An exemption may be granted subject to conditions which may be varied. An exemption must not be varied.
An exemption may be revoked.
52 Application of this Part
(1) This Part applies in relation to a kind of prescribed goods (in this Part called relevant goods) that are to be exported:
(a) as a commercial sample; or
(b) for experimental purposes; or
(c) in exceptional circumstances; or
(d) in special commercial circumstances; or
(e) in other circumstances prescribed by the rules.
(2) For the purposes of subsection (1), the rules may prescribe the meaning of any of the following terms:
(a) commercial sample;
(b) experimental purposes;
(c) exceptional circumstances;
(d) special commercial circumstances.
(3) This Part also applies to a kind of prescribed goods (in this Part also called relevant goods) that are to be exported to a particular country (the importing country) if the Secretary is satisfied that it is not necessary for one or more of the provisions of this Act to be complied with for the purpose of ensuring that importing country requirements relating to the goods are met.
Division 2—Exemptions
53 Application for exemption
(1) An application for an exemption from one or more provisions of this Act in relation to relevant goods may be made to the Secretary by any of the following:
(a) a person who wishes to export relevant goods;
(b) the manager of an accredited property where export operations in relation to relevant goods are or will be carried out;
(c) the occupier of a registered establishment where export operations in relation to relevant goods are or will be carried out;
(d) the holder of an approved arrangement that covers export operations in relation to relevant goods;
(e) the holder of an export licence that covers export operations in relation to relevant goods.
Note: The reference to this Act includes a reference to instruments made under this Act (see the definition of this Act in section 12).
(2) However, an application for an exemption must not be made:
(a) in relation to goods that are permanently prohibited goods; or
(b) if the application is for an exemption from section 23A; or
(c) in relation to goods the export of which is prohibited by a temporary prohibition determination.
(3) An application for an exemption must:
(a) if the Secretary has approved, in writing, a manner for making an application—be made in an approved manner; and
(b) if the Secretary has approved a form for making an application:
(i) include the information required by the form; and
(ii) be accompanied by any documents required by the form; and
(c) set out the basis on which the exemption is sought; and
(d) include the information (if any) prescribed by the rules; and
(e) be accompanied by any documents prescribed by the rules; and
(f) be made:
(i) within the period prescribed by the rules; or
(ii) if the Secretary allows a different period—within that period.
Note: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).
(4) The Secretary may accept any information or document previously given to the Secretary in connection with an application made under this Act, or a notice of intention to export a consignment of prescribed goods given under this Act, as satisfying any requirement to give that information or document under subsection (3).
(5) An application is taken not to have been made if the application does not comply with the requirements referred to in subsection (3) for the application.
54 Secretary must decide whether to grant exemption
Secretary must decide whether to grant exemption
(1) On receiving an application made under section 53 for an exemption, the Secretary must decide:
(a) to grant the exemption; or
(b) to refuse to grant the exemption.
Note: An application that does not comply with the requirements referred to in subsection 53(3) for the application is taken not to have been made (see subsection 53(5)).
Secretary may request further information or documents
(2) The Secretary may, in writing, request the applicant to give the Secretary further specified information or documents relevant to the application.
Grounds for granting exemption
(3) The Secretary may grant the exemption if the Secretary is satisfied, having regard to any matter prescribed by the rules or any other matter that the Secretary considers relevant, that:
(a) any requirements prescribed by the rules are met; and
(b) it is appropriate to grant the exemption.
Note: An exemption must not be varied (see subsection 58(1)).
55 Exemption may be granted subject to conditions
(1) The Secretary may grant an exemption under paragraph 54(1)(a) in relation to relevant goods, subject to any conditions that the Secretary considers are necessary.
Note: Conditions of an exemption may be varied (see section 58).
(2) In considering whether it is necessary to impose conditions on an exemption, the Secretary must have regard to the matters prescribed by the rules.
Fault‑based offence
(3) A person commits an offence if:
(a) the person is the holder of an exemption in force under this Part; and
(b) the person engages in conduct; and
(c) the conduct contravenes a condition of the exemption.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
Civil penalty provision
(4) A person is liable to a civil penalty if:
(a) the person is the holder of an exemption in force under this Part; and
(b) the person contravenes a condition of the exemption.
Civil penalty: 600 penalty units.
56 Notice of decision
Instrument of exemption
(1) If the Secretary decides to grant an exemption under paragraph 54(1)(a) in relation to relevant goods, the Secretary must give the applicant for the exemption an instrument of exemption stating the following:
(a) the kind of goods covered by the exemption;
(b) if applicable, each importing country covered by the exemption;
(c) the basis on which the exemption has been granted;
(d) the provisions of this Act covered by the exemption;
(e) the date (which must not be retrospective) when the exemption takes effect;
(f) the period during which the exemption remains in force (as prescribed by rules made for the purposes of paragraph 57(b));
(g) any conditions of the exemption;
(h) any other information prescribed by the rules.
(2) An instrument of exemption given under subsection (1) is not a legislative instrument.
Notice of refusal
(3) If the Secretary decides to refuse to grant an exemption under paragraph 54(1)(b), the Secretary must notify the applicant, in writing, of the decision. The notice must include the reasons for the decision.
57 Period of effect of exemption
An exemption granted under paragraph 54(1)(a):
(a) takes effect on the date stated in the instrument of exemption under paragraph 56(1)(e); and
(b) remains in force as prescribed by the rules unless it is revoked under section 59.
58 Variation of conditions of exemption
(1) Except as provided by subsection (2), an exemption that is in force under this Part must not be varied.
Note: If changes to an exemption are needed, an application for a new exemption must be made.
(2) If the Secretary considers it necessary to do so, the Secretary may vary the conditions of an exemption that is in force under this Part (including by imposing new conditions).
(3) In considering whether it is necessary to vary the conditions of an exemption, the Secretary must have regard to the matters prescribed by the rules.
(4) If the Secretary varies the conditions of an exemption, the Secretary must give the holder of the exemption a written notice stating the following:
(a) the varied conditions and any new conditions;
(b) the reason for varying the conditions;
(c) the date the varied conditions take effect;
(d) any other information prescribed by the rules.
59 Revocation of exemption
(1) The Secretary may revoke an exemption that is in force under this Part.
(2) In considering whether to revoke an exemption, the Secretary must have regard to the matters prescribed by the rules.
(3) If the Secretary decides to revoke an exemption, the Secretary must give the holder of the exemption a written notice stating the following:
(a) that the exemption is to be revoked;
(b) the reasons for the revocation;
(c) the date the revocation is to take effect.
60 Effect of exemption
If an exemption from one or more provisions of this Act (the exempted provisions) is in force under this Part in relation to relevant goods, the exempted provisions do not apply in relation to the export of the goods.
Part 3—Government certificates
Division 1—Introduction
61 Simplified outline of this Part
The rules may make provision for and in relation to the issue of government certificates in relation to prescribed goods and non‑prescribed goods that are to be, or that have been, exported.
In deciding whether to make rules in relation to goods that are not animals, plants or food, the Secretary may have regard to relevant matters, including importing country requirements, sanitary matters, Australian laws and standards, Australia’s international rights and obligations and international standards.
A person may apply to an issuing body for the issue of a government certificate in relation to goods that are to be, or that have been, exported. The issuing body is a person or body prescribed by the rules in relation to the goods or, if no person or body is prescribed in relation to the goods, the issuing body is the Secretary.
The issuing body must decide whether to issue a government certificate. The Secretary may exercise certain powers in relation to an application for a government certificate.
Certain issuing bodies may charge a fee in relation to things done in the performance of the issuing body’s functions or the exercise of the issuing body’s powers under this Act.
A government certificate may be issued electronically or in another form that is acceptable to the relevant importing country.
A government certificate has effect for a particular period.
A government certificate may be revoked and may be required to be returned.
Division 2—Rule‑making powers
62 Rules may make provision for and in relation to government certificates
(1) The rules may make provision for and in relation to the issue of government certificates in relation to goods that are to be, or that have been, exported.
(2) Without limiting subsection (1), the rules:
(a) may specify:
(i) kinds of goods in relation to which a government certificate may be issued; and
(ii) kinds of goods in relation to which a government certificate must not be issued; and
(iii) kinds of government certificates that may be issued in relation to specified kinds of goods; and
(b) may make provision for and in relation to any of the following:
(i) applications for a government certificate in relation to a kind of goods;
(ii) the matters that may be stated in a government certificate in relation to a kind of goods;
(iii) requirements that must be complied with in relation to a kind of goods before a government certificate in relation to goods of that kind may be issued.
(3) In deciding whether to make rules for the purposes of subparagraph (2)(a)(i) specifying a kind of non‑prescribed goods referred to in paragraph (d) of the definition of goods in section 12, the Secretary may have regard to the following matters:
(a) any importing country requirements relating to goods of that kind;
(b) sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to goods of that kind;
(c) any Australian laws and standards relating to goods of that kind;
(d) Australia’s rights and obligations relating to goods of that kind under any international agreements to which Australia is a party;
(e) any international standards relating to goods of that kind;
(f) any other matter the Secretary considers relevant.
63 Issuing bodies
(1) The issuing body for a government certificate in relation to a kind of goods that are to be, or that have been, exported is:
(a) a person or body prescribed by the rules in relation to goods of that kind; or
(b) if no person or body is prescribed by the rules in relation to goods of that kind—the Secretary.
(2) For the purposes of subsection (1), the rules may provide that one or more of the following is an issuing body for a government certificate in relation to a kind of goods that are to be, or that have been, exported:
(a) the Secretary;
(b) a person or body that is covered by an approved arrangement that provides for the person or body to issue government certificates in relation to goods of that kind;
(c) a specified person or body.
64 Certain issuing bodies may charge fees
(1) An issuing body for a government certificate may charge a fee under this section in relation to things done in the performance of the issuing body’s functions or the exercise of the issuing body’s powers under this Act.
(2) A fee must not be such as to amount to taxation.
(3) This section does not apply in relation to the Secretary.
Note: Section 399 provides for fees to be charged in relation to the performance of functions or the exercise of powers by the Secretary as an issuing body.
Division 3—Issue of government certificate
65 Application for government certificate
(1) A person may apply to an issuing body for a government certificate in relation to a kind of goods that are to be, or that have been, exported.
(2) An application for a government certificate must:
(a) if the Secretary has approved, in writing, a manner for making an application—be made in an approved manner; and
(b) if the Secretary has approved a form for making an application:
(i) include the information required by the form; and
(ii) be accompanied by any documents required by the form; and
(c) include the information (if any) prescribed by the rules; and
(d) be accompanied by any documents prescribed by the rules.
Note 1: The Secretary may approve a single form that may be used to apply for an export permit for a kind of prescribed goods and a government certificate in relation to the goods (see subsection 239(4)).
Note 2: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).
(3) The issuing body may accept any information or document previously given to an issuing body in connection with an application made under this Act, or a notice of intention to export a consignment of goods given under this Act, as satisfying any requirement to give that information or document under subsection (2).
(4) An application is taken not to have been made if the application does not comply with the requirements referred to in subsection (2) for the application.
66 Additional or corrected information
(1) A person who has made an application to an issuing body under section 65 must comply with subsection (2) of this section if:
(a) the person becomes aware that information included in the application, or information or a document given to the issuing body in relation to the application, was incomplete or incorrect; or
(b) a change prescribed by the rules occurs.
(2) The person must, as soon as practicable, give the issuing body additional or corrected information, to the extent that it is relevant to the issuing body’s consideration of the application.
Note 1: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).
Note 2: This section is not subject to the privilege against self‑incrimination (see section 426).
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to give information to the issuing body under subsection (2); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
67 Issuing body must decide whether to issue government certificate
(1) On receiving an application made under section 65 for a government certificate in relation to a kind of goods, the issuing body must decide:
(a) to issue the certificate; or
(b) to refuse to issue the certificate.
Note 1: An application that does not comply with the requirements referred to in subsection 65(2) for the application is taken not to have been made (see subsection 65(4)).
Note 2: A decision in relation to the application may be made by the operation of a computer program (see section 286).
(2) The issuing body may, in writing, request the applicant to give the issuing body further specified information or documents relevant to the application.
Note: If the issuing body is the Secretary, the Secretary may also exercise powers under section 68.
Grounds for refusing to issue government certificate
(3) The issuing body may refuse to issue a government certificate in relation to the goods if:
(a) the issuing body is not satisfied, having regard to any matter that the issuing body considers relevant, that:
(i) the requirements of this Act in relation to the export of the goods have been complied with, or will be complied with before the goods are imported into the importing country; or
(ii) any importing country requirements relating to the goods have been met, or will be met before the goods are imported into the importing country; or
(iii) the matters to be stated in the government certificate in relation to the goods are true and correct; or
(b) the issuing body reasonably believes that the applicant:
(i) made a false, misleading or incomplete statement in the application for the certificate; or
(ii) gave false, misleading or incomplete information or documents to the issuing body or to another person performing functions or exercising powers under this Act; or
(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law; or
(c) any information or documents requested under subsection (2) are not given to the issuing body within a reasonable period after the request was made; or
(d) the applicant refused to consent to a request by a person to enter premises of the applicant:
(i) to conduct an audit of export operations carried out in relation to the goods under Part 1 of Chapter 9; or
(ii) to carry out an assessment of the goods under Part 2 of that Chapter; or
(e) the applicant refused to cooperate with a request made by the issuing body, or any other person performing functions or exercising powers under this Act, in relation to the goods; or
(f) the issuing body reasonably believes that the applicant has contravened a requirement of this Act in relation to the goods; or
(g) circumstances prescribed by the rules exist.
Notice of refusal
(4) If the issuing body decides not to issue a government certificate in relation to the goods, the issuing body must notify the applicant, in writing, of the decision.
68 Powers of Secretary in relation to application
If an application for a government certificate in relation to a kind of goods is made to the Secretary under section 65, the Secretary may do anything the Secretary considers necessary in relation to the application, including the following:
(a) request, in writing, the applicant, or another person who the Secretary considers may have information or documents relevant to the application, to give the Secretary further specified information or documents relevant to the application;
(b) require an audit of export operations carried out in relation to the goods to be conducted under Part 1 of Chapter 9;
(c) require an assessment of the goods to be carried out under Part 2 of Chapter 9;
(d) request the applicant to give the Secretary a written statement, signed and dated by the applicant, verifying that:
(i) the requirements of this Act in relation to the export of the goods have been complied with, or will be complied with before the goods are imported into the importing country; and
(ii) any importing country requirements relating to the goods have been met, or will be met before the goods are imported into the importing country; and
(iii) the matters to be stated in the certificate are true and correct;
(e) take, test or analyse samples of goods, or from equipment or other things, that are relevant to the application;
(f) arrange for another person with appropriate qualifications or expertise to take, test or analyse samples of goods, or from equipment or other things, that are relevant to the application;
(g) any other thing prescribed by the rules.
Note 1: See Division 2 of Part 6 of Chapter 11 in relation to taking, testing and analysing samples.
Note 2: An audit of export operations carried out in relation to a kind of non‑prescribed goods by a person to whom a government certificate has been issued may be conducted at any time during the period of 18 months after the certificate was issued (see subsection 266(4)).
69 Applications in relation to certain kinds of non‑prescribed goods
(1) This section applies in relation to an application to the Secretary for a government certificate that relates to a kind of goods (the relevant goods) referred to in paragraph (d) of the definition of goods in section 12 that:
(a) are non‑prescribed goods; and
(b) are not specified by rules made for the purposes of subparagraph 62(2)(a)(i) or (ii).
(2) For the purposes of making a decision in relation to the application, the Secretary may have regard to the following matters (in addition to the matters referred to in subsection 67(3)):
(a) sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to the relevant goods;
(b) any Australian laws and standards relating to the relevant goods;
(c) Australia’s rights and obligations relating to the relevant goods under any international agreements to which Australia is a party;
(d) any international standards relating to the relevant goods;
(e) any other matter the Secretary considers relevant.
(3) However, the Secretary need not have regard to the matters referred to in subsection (2) if:
(a) goods of the same kind as the relevant goods have previously been exported to a country; and
(b) the Secretary has previously issued a government certificate in relation to goods of that kind that have been exported to that country.
70 Government certificate for goods that are to be, or that have been, exported from certain external Territories
If:
(a) this Part extends to an external Territory or an area adjacent to that external Territory under subsection 8(2); and
(b) a government certificate is issued in relation to a kind of goods that are to be, or that have been, exported from that Territory or area;
the certificate may state that the goods are from that Territory.
71 Manner of issuing government certificate
A government certificate in relation to a kind of goods may be issued:
(a) electronically; or
(b) in another form acceptable to the country to which the goods are to be, or have been, exported.
72 Period of effect of government certificate
(1) A government certificate in relation to a kind of goods takes effect:
(a) on the date it is issued; or
(b) if a later date is stated in the certificate—on that later date.
(2) A government certificate that relates to a single consignment of goods remains in force until the earlier of the following:
(a) any expiry date specified in the certificate;
(b) the day the certificate is accepted, or rejected, by the importing country.
(3) A government certificate that relates to 2 or more consignments of goods remains in force until the earliest of the following:
(a) any expiry date specified in the certificate;
(b) the day any consignment of the goods is rejected by the importing country;
(c) the day on which the last consignment of the goods is accepted by the importing country.
(4) Despite subsections (2) and (3), a government certificate in relation to a kind of goods ceases to be in force if:
(a) the goods are no longer intended to be exported to the country in relation to which the certificate was issued; or
(b) the certificate is revoked; or
(c) circumstances prescribed by the rules exist.
Division 4—Other matters
73 Secretary may require assessment of goods
(1) This section applies if a government certificate is in force in relation to a kind of non‑prescribed goods.
(2) The Secretary may require an assessment of the goods to be carried out under Part 2 of Chapter 9 if the Secretary reasonably believes that:
(a) the requirements of this Act have not been complied with, or are not likely to be complied with before the goods are imported into the importing country; or
(b) an importing country requirement relating to the goods will not be, or is not likely to be, met before the goods are imported into the importing country; or
(c) the matters stated in the government certificate in relation to the goods are no longer true and correct; or
(d) circumstances prescribed by the rules exist.
74 Additional or corrected information in relation to application for government certificate etc.
(1) The holder of a government certificate in relation to a kind of goods must comply with subsection (2) if:
(a) the holder becomes aware that information included in the application for the certificate made by the holder, or information or a document given to the issuing body in relation to such an application, was incomplete or incorrect; or
(b) a change prescribed by the rules occurs.
(2) The holder of the government certificate must, as soon as practicable, give the issuing body additional or corrected information, to the extent that it is relevant to assessing whether:
(a) the requirements of this Act in relation to the export of the goods in relation to which the certificate was issued have been complied with, or will be complied with before the goods are imported into the importing country; or
(b) the importing country requirements relating to the goods in relation to which the certificate was issued have been met, or will be met before the goods are imported into the importing country; or
(c) the matters stated in the government certificate in relation to the goods are true and correct.
Note 1: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).
Note 2: This section is not subject to the privilege against self‑incrimination (see section 426).
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to give information to the issuing body under subsection (2); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
75 Revocation of government certificate
(1) The issuing body that issued a government certificate in relation to a kind of goods, or the Secretary, may revoke the certificate if the issuing body or the Secretary (as the case may be) reasonably believes any of the following:
(a) information specified in the certificate is incorrect;
(b) this Act has not been, is not being or will not be complied with in relation to the goods;
(c) an importing country requirement relating to the goods will not be, or is not likely to be, met;
(d) the integrity of the goods cannot be ensured;
(e) the holder of the certificate has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under this Act; or
(ii) hindered or prevented a person from performing functions or exercising powers under this Act;
(f) the holder of the certificate:
(i) made a false, misleading or incomplete statement in the application for the certificate; or
(ii) gave false, misleading or incomplete information or documents to the issuing body or to another person performing functions or exercising powers under this Act; or
(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;
(g) the certificate has not, or is not being, kept securely as required by rules made for the purposes of section 408;
(h) circumstances prescribed by the rules exist.
Note: A government certificate that has been issued in relation to a kind of goods is taken to have been revoked if a temporary prohibition determination applies in relation to the goods (see subsection 26(1)).
(2) If a government certificate is revoked by the issuing body or the Secretary under subsection (1), the issuing body or the Secretary must notify the holder of the certificate, in writing, of the revocation.
76 Return of government certificate
(1) The rules may require a person who is in possession of a government certificate that was issued to the person to return the certificate to the issuing body that issued the certificate:
(a) in the circumstances prescribed by the rules; and
(b) at the time, or within the period, prescribed by the rules.
Civil penalty provision
(2) A person is liable to a civil penalty if:
(a) the person is required to return a government certificate to an issuing body under rules made for the purposes of subsection (1); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
Chapter 3—Accredited properties
Part 1—Introduction
77 Simplified outline of this Chapter
The Secretary may, on application by the manager of a property, accredit the property for a kind of export operations in relation to a kind of prescribed goods.
A property may be accredited for more than one kind of export operations in relation to more than one kind of prescribed goods for export to one or more places.
The accreditation of a property is subject to certain conditions.
The accreditation of a property may remain in force indefinitely or may cease to be in force on an expiry date.
If there is an expiry date for the accreditation of a property, the accreditation may be renewed.
The matters covered by the accreditation of a property or the conditions of the accreditation may be varied.
The accreditation of a property may be suspended wholly or in part, and may be revoked.
A show cause notice must be given to the manager of an accredited property before the accreditation may be varied, suspended or revoked (except in serious and urgent cases or if the manager has requested the variation, suspension or revocation).
The manager of an accredited property must comply with certain obligations.
Part 2—Application for accreditation
78 Application for accreditation of property
(1) The manager of a property may apply to the Secretary to accredit the property for a kind of export operations in relation to a kind of prescribed goods.
(2) An application:
(a) may relate to more than one kind of export operations and more than one kind of prescribed goods; and
(b) may, but is not required to, specify one or more places to which the goods are to be exported.
Note 1: The export of a kind of prescribed goods may be prohibited unless export operations in relation to the goods have been carried out at an accredited property (see section 29 and rules made for the purposes of that section).
Note 2: Section 377 sets out requirements for applications.
79 Secretary must decide whether to accredit property
(1) On receiving an application under section 78 to accredit a property, the Secretary must decide:
(a) to accredit the property; or
(b) to refuse to accredit the property.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the application is to accredit the property for more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to accredit the property for some or all of those kinds of export operations in relation to some or all of those kinds of goods for export to some or all of those places.
Note 3: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 4: A decision to refuse to accredit a property for a kind of export operations in relation to a kind of prescribed goods is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(2) The Secretary may accredit the property for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a specified place to which the goods may be exported if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that the following requirements are met:
(a) either:
(i) all relevant Commonwealth liabilities of the manager of the property, or relating to the property, have been paid or are taken to have been paid; or
(ii) if one or more relevant Commonwealth liabilities of the manager, or relating to the property, have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;
(b) any other requirements prescribed by the rules.
Note: For the purposes of paragraph (a), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).
(3) Without limiting paragraph (2)(b), the rules may prescribe requirements in relation to any or all of the following:
(a) the manager of a property;
(b) the kind of property;
(c) a kind of export operations;
(d) a kind of prescribed goods;
(e) importing country requirements relating to a kind of export operations or a kind of prescribed goods.
(4) If the Secretary accredits the property, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the accreditation.
Note 1: If there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked (see subsection 82(1)).
Note 2: A decision to set an expiry date for the accreditation of a property is a reviewable decision (see Part 2 of Chapter 11).
(5) The Secretary may set an expiry date for the accreditation of the property under subsection (4) even if rules made for the purposes of subsection 82(5) apply in relation to the accreditation.
80 Conditions of accreditation
(1) If the Secretary accredits a property for a kind of export operations in relation to a kind of prescribed goods, the accreditation is subject to:
(a) the conditions provided by this Act; and
(b) the conditions prescribed by the rules (other than any of those conditions that the Secretary decides are not to be conditions of the accreditation); and
(c) any additional conditions that the Secretary considers appropriate and that are specified in the notice given to the applicant under section 81.
Note 1: The manager of an accredited property may commit an offence or be liable to a civil penalty if a condition of the accreditation is contravened (see section 106).
Note 2: The accreditation of a property may be suspended or revoked if a condition of the accreditation is contravened (see sections 94 and 102).
Note 3: A decision to accredit a property subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).
Note 4: Part 7 sets out additional obligations of the manager of an accredited property.
(2) Without limiting paragraph (1)(b), the rules may prescribe conditions in relation to any or all of the following:
(a) the manager of a property;
(b) the kind of property;
(c) a kind of export operations;
(d) a kind of prescribed goods;
(e) importing country requirements relating to a kind of export operations or a kind of prescribed goods.
(3) For the purposes of this Act, conditions to which the accreditation of a property is subject under subsection (1) or section 85 are conditions of the accreditation.
81 Notice of decision
If the Secretary accredits a property, the Secretary must give the applicant a written notice stating the following information:
(a) the accreditation number allocated to the property;
(b) each kind of export operations and each kind of prescribed goods covered by the accreditation;
(c) if applicable, each place to which a kind of prescribed goods covered by the accreditation may be exported;
(d) the date the accreditation takes effect;
(e) that the accreditation remains in force indefinitely or the expiry date for the accreditation;
(f) any conditions prescribed by the rules that the Secretary has decided are not to be conditions of the accreditation;
(g) any additional conditions of the accreditation;
(h) the name of the manager of the property;
(i) any other information prescribed by the rules.
82 Period of effect of accreditation
Accreditations that have no expiry date
(1) If there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked under Part 6 or under rules made for the purposes of subsection 109(3).
Accreditations that have an expiry date
(2) If there is an expiry date for the accreditation of a property (including an accreditation that has been renewed under Part 3), the accreditation remains in force until the end of that expiry date unless:
(a) the accreditation is renewed under Part 3 on or before that date; or
(b) the accreditation is revoked under Part 6 or under rules made for the purposes of subsection 109(3) on or before that date.
(3) There is an expiry date for the accreditation of a property if:
(a) rules made for the purposes of subsection (5) apply in relation to the accreditation; or
(b) an expiry date for the accreditation set under subsection 79(4) or 84(3) or paragraph 90(1)(c) or (d) is in force in relation to the accreditation.
(4) The expiry date for the accreditation of a property is:
(a) if rules made for the purposes of subsection (5) apply in relation to the accreditation and no expiry date set under subsection 79(4) or 84(3) or paragraph 90(1)(c) or (d) is in force in relation to the accreditation—the last day of the period prescribed by the rules; or
(b) if an expiry date for the accreditation set under subsection 79(4) or 84(3) or paragraph 90(1)(c) or (d) is in force in relation to the accreditation—that date.
Rules may prescribe period of effect of accreditation
(5) The rules may prescribe the period during which the accreditation of a property remains in force. The rules may apply in relation to:
(a) accreditations of properties generally; or
(b) accreditations of properties for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a place to which the goods may be exported.
Part 3—Renewal of accreditation
83 Application to renew accreditation of property
(1) This section applies in relation to an accredited property (including a property in relation to which a suspension is in effect under Part 5) if there is an expiry date for the accreditation.
Note: See subsections 82(3) and (4) in relation to the expiry date for the accreditation of a property.
(2) The manager of the property may apply to the Secretary to renew the accreditation of the property.
Note: Section 377 sets out requirements for applications.
(3) An application for renewal:
(a) may relate to more than one kind of export operations and more than one kind of prescribed goods; and
(b) may, but is not required to, specify one or more places to which the goods are to be exported.
(4) An application for renewal must be made:
(a) within the period prescribed by the rules; or
(b) if the Secretary allows a longer period—within that longer period.
(5) If an application to renew the accreditation of a property is made after the period applying under subsection (4):
(a) the application is taken to be an application to accredit the property; and
(b) Part 2 applies in relation to the application; and
(c) the other provisions of this Part do not apply in relation to the application.
84 Secretary must decide whether to renew accreditation
(1) On receiving an application under section 83 to renew the accreditation of a property, the Secretary must decide:
(a) to renew the accreditation; or
(b) to refuse to renew the accreditation.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the application is to renew the accreditation of the property for more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to renew the accreditation for some or all of those kinds of export operations in relation to some or all of those kinds of goods for export to some or all of those places.
Note 3: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 4: A decision to refuse to renew the accreditation of the property for a kind of export operations in relation to a kind of prescribed goods is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(2) The Secretary may refuse to renew the accreditation of the property for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a specified place to which the goods may be exported if the Secretary is not satisfied, having regard to any matter that the Secretary considers relevant, of one or more of the following:
(a) the requirements prescribed by rules made for the purposes of paragraph 79(2)(b) are continuing to be met;
(b) either:
(i) all relevant Commonwealth liabilities of the manager of the property, or relating to the property, have been paid or are taken to have been paid; or
(ii) if one or more relevant Commonwealth liabilities of the manager, or relating to the property, have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;
(c) the manager of the property has complied with the requirements of this Act;
(d) the conditions of the accreditation have been, and are being, complied with;
(e) any other requirement prescribed by the rules is being, or has been, met.
Note: For the purposes of paragraph (b), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).
(3) If the Secretary renews the accreditation of the property, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the accreditation.
Note 1: If there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked (see subsection 82(1)).
Note 2: A decision to set an expiry date for the renewed accreditation of a property is a reviewable decision (see Part 2 of Chapter 11).
(4) The Secretary may set an expiry date for the accreditation of the property under subsection (3) even if rules made for the purposes of subsection 82(5) apply in relation the accreditation.
85 Conditions of renewed accreditation
If the Secretary renews the accreditation of a property, the accreditation is subject to:
(a) the conditions provided by this Act; and
(b) the conditions prescribed by the rules (other than any of those conditions that the Secretary decides are not to be conditions of the accreditation); and
(c) any additional conditions that the Secretary considers appropriate and that are specified in the notice given to the applicant under section 86.
Note 1: The manager of an accredited property may commit an offence or be liable to a civil penalty if a condition of the accreditation is contravened (see section 106).
Note 2: The accreditation of a property may be suspended or revoked if a condition of the accreditation is contravened (see sections 94 and 102).
Note 3: A decision to renew the accreditation of a property subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).
Note 4: Part 7 sets out additional obligations of the manager of an accredited property.
86 Notice of decision
If the accreditation of a property is renewed, the Secretary must give the applicant a written notice stating the information referred to in section 81.
Part 4—Variation of accreditation
Division 1—Application by manager
87 Application by manager for variation of accreditation or approval of alteration of property
(1) The manager of an accredited property may apply to the Secretary:
(a) to vary the accreditation in relation to any of the following matters (including by adding or removing any of those matters):
(i) kinds of export operations;
(ii) kinds of prescribed goods;
(iii) if applicable, places to which goods may be exported; or
(b) to approve a variation of the accreditation so that it covers:
(i) an alteration of the property, being an alteration of a kind prescribed by the rules; or
(ii) the carrying out of export operations on an additional part of the property, or on another property, in the circumstances prescribed by the rules; or
(c) to vary the conditions of the accreditation; or
(d) to vary the particulars relating to the accreditation to make a minor change to a matter (including to correct a minor or technical error); or
(e) to vary any other aspect of the accreditation.
Example: For the purposes of paragraph (e), a variation may be needed to change the name of a person who manages or controls, or will manage or control, export operations covered by the accreditation.
Note: Section 377 sets out requirements for applications. A single application may be made to make or approve a variation in relation to the accreditation of a property and to renew the accreditation of the property.
(2) If the Secretary receives an application under subsection (1) to make a variation or give an approval, the Secretary must decide:
(a) to make the variation or give the approval; or
(ab) to make the variation, or give the approval, with additional conditions or variations of conditions; or
(b) to refuse to make the variation or give the approval.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 3: A decision to approve the application with additional conditions or variations of conditions, or to refuse the application, is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(3) The Secretary may make a decision under paragraph (2)(a) or, subject to subsections (4) and (5), paragraph (2)(ab), if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that, if the decision is made:
(a) the requirements prescribed by rules made for the purposes of paragraph 79(2)(b) would continue to be met; and
(b) any other requirement prescribed by the rules would be met.
Making variation or giving approval with additional conditions or variations of conditions
(4) The Secretary may make the variation, or give the approval, with additional conditions or variations of conditions under paragraph (2)(ab) only if the Secretary reasonably believes that the additional conditions or variations of conditions are necessary:
(a) to ensure the requirements prescribed by rules made for the purposes of paragraph 79(2)(b) will continue to be met; or
(b) to ensure compliance with a condition of the accreditation; or
(c) to correct a minor or technical error; or
(d) for any other reason prescribed by the rules.
(5) The Secretary must not make a decision under paragraph (2)(ab) unless the Secretary has given a written notice to the manager of the accredited property in accordance with subsection (6).
(6) The written notice must:
(a) specify each proposed additional condition or variation of a condition; and
(b) specify the grounds for each proposed additional condition or variation of a condition; and
(c) request the manager of the property to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed additional conditions or variations of conditions should not be made; and
(d) include a statement setting out the manager’s right to seek a review of a decision made under paragraph (2)(ab).
88 Notice of variation or approval of alteration
Variation or approval
(1) If the Secretary makes a variation or gives an approval in relation to the accreditation of a property under paragraph 87(2)(a), the Secretary must give the manager of the property written notice of the variation or approval.
(2) The notice must state the following:
(a) details of the variation or approval;
(b) if the variation is of the conditions of the accreditation—the varied conditions;
(c) the date the variation or approval takes effect;
(d) any other information prescribed by the rules.
Note: The accreditation, as varied, remains in force as provided by section 82.
Variation or approval with additional conditions or variations of conditions
(3) If the Secretary makes a variation, or gives an approval, with additional conditions or variations of conditions in relation to the accreditation of a property under paragraph 87(2)(ab), the Secretary must give the manager of the property written notice of the variation or approval.
(4) The notice must state the following:
(a) details of the variation or approval;
(b) if the Secretary varied the conditions of the accreditation as requested in the application under subsection 87(1)—the varied conditions;
(c) the additional conditions or variations of conditions;
(d) the date the variation, approval, varied conditions or additional conditions take effect, which must not be before the earlier of the following:
(i) the day after any response requested in the written notice (the show cause notice) given to the manager under subsection 87(5) is received by the Secretary;
(ii) the end of 14 days after the show cause notice was given;
(e) any other information prescribed by the rules.
Note: The accreditation, as varied, remains in force as provided by section 82.
89 Certain variations must not be made unless approved
Prescribed alteration of property
(1) The manager of an accredited property must not make an alteration of the property that is of a kind prescribed by rules made for the purposes of subparagraph 87(1)(b)(i) unless:
(a) the alteration has been approved under paragraph 87(2)(a) or 87(2)(ab); and
(b) the Secretary has given the manager notice of the approval under section 88.
Note: The Secretary may suspend or revoke the accreditation of the property if the manager contravenes this subsection (see paragraphs 94(1)(g) and 102(1)(g)).
Carrying out export operations on additional part of property
(2) The manager of an accredited property must not carry out export operations in relation to a kind of prescribed goods on an additional part of the property, or on another property, in the circumstances prescribed by rules made for the purposes of subparagraph 87(1)(b)(ii) unless:
(a) the carrying out of those export operations on the additional part of the property, or on the other property, has been approved under paragraph 87(2)(a) or 87(2)(ab); and
(b) the Secretary has given the manager notice of the approval under section 88.
Note: The Secretary may suspend or revoke the accreditation of the property if the manager contravenes this subsection (see paragraphs 94(1)(g) and 102(1)(g)).
Division 2—Variation by Secretary
90 Secretary may make variations in relation to accreditation
(1) The Secretary may do any of the following in relation to the accreditation of a property:
(a) vary any aspect of the accreditation, including so that it does not cover:
(i) a kind of export operations; or
(ii) a kind of prescribed goods; or
(iii) if applicable, a place to which goods may be exported;
(b) vary the conditions of the accreditation (including by imposing new conditions);
(c) if there is no expiry date for the accreditation—vary the accreditation by setting an expiry date for the accreditation;
(d) if there is an expiry date for the accreditation (whether under paragraph 82(4)(a) or (b))—vary the accreditation by setting a different expiry date for the accreditation;
(e) if there is an expiry date for the accreditation under paragraph 82(4)(b)—vary the accreditation by revoking that expiry date.
Note 1: If the Secretary revokes the expiry date for the accreditation under paragraph (e), the accreditation will remain in force:
(a) if rules made for the purposes of subsection 82(5) apply in relation to the accreditation—for the period prescribed by the rules; or
(b) if there are no such rules—indefinitely (unless it is revoked).
Note 2: Certain decisions under subsection (1) are reviewable decisions (see Part 2 of Chapter 11).
(2) The Secretary may make a variation in relation to the accreditation of a property under paragraph (1)(a), (b) or (c), or set an earlier expiry date for the accreditation under paragraph (1)(d), only if the Secretary reasonably believes that:
(a) the requirements prescribed by rules made for the purposes of paragraph 79(2)(b) are no longer being met; or
(b) a condition of the accreditation has been, or is being, contravened; or
(c) it is necessary to do so:
(i) to take account of an event notified under section 108; or
(ii) to correct a minor or technical error; or
(d) the accreditation needs to be varied for any other reason prescribed by the rules.
Notice of certain proposed variations
(3) The Secretary must not make a variation in relation to the accreditation of a property under paragraph (1)(a), (b) or (c), or set an earlier expiry date for the accreditation under paragraph (1)(d), unless the Secretary has given a written notice to the manager of the property in accordance with subsection (4).
(4) A notice under subsection (3) must:
(a) specify each proposed variation; and
(b) specify the grounds for each proposed variation; and
(c) subject to subsection (5), request the manager of the property to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed variation should not be made; and
(d) include a statement setting out the manager’s right to seek review of a decision to make the proposed variation.
(5) A notice under subsection (3) is not required to include the request referred to in paragraph (4)(c) if the Secretary reasonably believes that the grounds for the proposed variation are serious and urgent.
91 Notice of variation
(1) If the Secretary makes a variation in relation to the accreditation of a property under subsection 90(1), the Secretary must give the manager of the property written notice of the variation.
(2) The notice must state the following:
(a) details of the variation;
(b) if the variation is of the conditions of the accreditation—the varied conditions and any new conditions;
(c) if the variation affects the period of effect of the accreditation:
(i) the expiry date for the accreditation under paragraph 82(4)(a) or (b) (whichever applies); or
(ii) if there is no expiry date for the accreditation—that the accreditation remains in force unless it is revoked;
(d) the date the variation takes effect;
(e) any other information prescribed by the rules.
(3) If the manager was given a notice (a show cause notice) under subsection 90(3) that included the request referred to in paragraph 90(4)(c), the variation must not take effect before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
Note: The accreditation, as varied, remains in force as provided by section 82.
Part 5—Suspension of accreditation
Division 1—Suspension requested by manager
92 Manager may request suspension
(1) Subject to subsection (2), the manager of an accredited property may request the Secretary to suspend the accreditation of the property in relation to a kind of export operations and a kind of prescribed goods and, if applicable, a place to which goods may be exported.
(2) A request may be made under subsection (1) only in the circumstances prescribed by the rules.
(3) A request under subsection (1) may relate to more than one kind of export operations or more than one kind of prescribed goods and, if applicable, more than one place.
(4) A request under subsection (1) must:
(a) be in writing; and
(b) state each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the accreditation is to be suspended; and
(c) specify the reason for the suspension; and
(d) include any other information prescribed by the rules.
(5) If the Secretary receives a request from the manager of an accredited property under subsection (1), the Secretary must, by written notice to the manager, suspend the accreditation as requested, with effect on the day specified in the notice.
93 Request to revoke suspension
(1) If the accreditation of a property is suspended under section 92, the manager of the property may request the Secretary to revoke the suspension.
(2) A request under subsection (1) must:
(a) be in writing; and
(b) state the reason for the request; and
(c) include any other information prescribed by the rules.
(3) If the Secretary receives a request from the manager of an accredited property under subsection (1), the Secretary may:
(a) if the Secretary is satisfied that the reason for the suspension no longer exists and there is no reason why the suspension should not be revoked—revoke the suspension by written notice to the manager; or
(b) in any other case:
(i) suspend the accreditation of the property under Division 2 of this Part; or
(ii) revoke the accreditation of the property under Division 2 of Part 6.
Note: A decision to suspend or revoke the accreditation of the property is a reviewable decision (see Part 2 of Chapter 11).
Division 2—Suspension by Secretary
94 Grounds for suspension—general
(1) The Secretary may suspend the accreditation of a property in relation to one or more kinds of export operations and one or more kinds of prescribed goods and, if applicable, one or more places to which goods may be exported if the Secretary reasonably believes any of the following:
(a) the integrity of a kind of prescribed goods covered by the accreditation cannot be ensured;
(b) a requirement prescribed by rules made for the purposes of paragraph 79(2)(b) is no longer met;
(c) a condition of the accreditation has been, or is being, contravened;
(d) the manager of the property:
(i) failed to comply with a direction given to the manager by an authorised officer or the Secretary; or
(ii) failed to comply with a request by an authorised officer to provide information or a document; or
(iii) failed to provide facilities and assistance to an auditor as required by section 271; or
(iv) failed to comply with a request made by an auditor under section 272;
(e) the manager of the property has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under this Act; or
(ii) hindered or prevented a person from performing functions or exercising powers under this Act;
(f) the manager of the property or any other person who manages or controls export operations carried out at the property:
(i) made a false, misleading or incomplete statement in an application under this Chapter; or
(ii) gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under this Act; or
(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;
(g) the manager of the property has contravened a requirement of this Act in relation to the accreditation of the property;
(h) a ground prescribed by the rules exists.
Note 1: A suspension must not be for more than 12 months (see section 97).
Note 2: A decision to suspend the accreditation of a property under this section is a reviewable decision (see Part 2 of Chapter 11).
Notice of proposed suspension
(2) The Secretary must not suspend the accreditation of a property under subsection (1) unless the Secretary has given a written notice to the manager of the property in accordance with subsection (3).
(3) A notice under subsection (2) must:
(a) specify each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the accreditation is proposed to be suspended; and
(b) specify the grounds for the proposed suspension; and
(c) subject to subsection (4), request the manager of the accredited property to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the accreditation should not be suspended as proposed; and
(d) include a statement setting out the manager’s right to seek review of a decision to suspend the accreditation as proposed.
(4) A notice under subsection (2) is not required to include the request referred to in paragraph (3)(c) if the Secretary reasonably believes that the grounds for the suspension are serious and urgent.
95 Grounds for suspension—overdue relevant Commonwealth liability
Notice of proposed suspension
(1) The Secretary may suspend the accreditation of a property in relation to all kinds of export operations and all kinds of prescribed goods if:
(a) a relevant Commonwealth liability of the manager of the property, or relating to the property, is more than 30 days overdue; and
(b) the Secretary has given a written notice to the person (the debtor) who is liable to pay the relevant Commonwealth liability in accordance with subsection (2); and
(c) within 8 days after the notice is given:
(i) the relevant Commonwealth liability has not been paid; or
(ii) the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.
Note 1: A suspension must not be for more than 12 months (see section 97).
Note 2: A decision to suspend the accreditation of a property under this section is a reviewable decision (see Part 2 of Chapter 11).
Note 3: If the Secretary suspends the accreditation of a property under this section, the Secretary may revoke the accreditation of the property in certain circumstances (see section 103).
(2) A notice under subsection (1) must:
(a) state that a relevant Commonwealth liability of the debtor in relation to an accredited property is more than 30 days overdue; and
(b) state that the Secretary may suspend the accreditation of the property for all kinds of export operations in relation to all kinds of prescribed goods if, within 8 days after the notice is given:
(i) the relevant Commonwealth liability is not paid; or
(ii) the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability; and
(c) include a statement setting out the debtor’s right to seek review of a decision to suspend the accreditation of the property.
Secretary may direct that activities not be carried out
(3) If the Secretary suspends the accreditation of a property under subsection (1), the Secretary may refuse to carry out, or direct a person not to carry out, specified activities or kinds of activities in relation to the debtor under this Act until the relevant Commonwealth liability has been paid.
Note: See also section 309 (general provisions relating to directions).
Action under this section does not affect liability to pay relevant Commonwealth liability
(4) Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.
96 Notice of suspension
(1) If the Secretary decides to suspend the accreditation of a property under this Division, the Secretary must give the manager of the property a written notice stating the following:
(a) that the accreditation of the property is to be suspended, for the period specified in the notice, in relation to all or specified kinds of export operations and all or specified kinds of prescribed goods and, if applicable, all or specified places to which goods may be exported;
(b) the reasons for the suspension;
(c) the date the suspension is to start;
(d) the period of the suspension.
(2) If the manager was given a notice (a show cause notice) under subsection 94(2) that included the request referred to in paragraph 94(3)(c), the suspension must not start before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
97 Period of suspension
(1) A suspension of the accreditation of a property under this Division must not be for more than 12 months.
(2) The Secretary may vary the period of a suspension under this Division by written notice to the manager of the property. However, the total period of the suspension must not be more than 12 months.
Note: A decision to extend the period of a suspension is a reviewable decision (see Part 2 of Chapter 11).
98 Revocation of suspension
The Secretary may revoke a suspension of the accreditation of a property under this Division by written notice to the manager of the property.
Division 3—Other provisions
99 Effect of suspension
(1) If the accreditation of a property is suspended wholly or in part under Division 1 or 2 or under rules made for the purposes of subsection 109(3):
(a) the accreditation of the property remains in force while it is suspended; and
(b) subject to rules made for the purposes of subsection (2), the requirements of this Act in relation to the accreditation (including the conditions of the accreditation) must be complied with while the accreditation is suspended.
(2) The rules may prescribe requirements of this Act (including conditions of the accreditation of a property) that are not required to be complied with during any period when the accreditation is suspended.
100 Export operations must not be carried out while accreditation suspended
(1) The manager of an accredited property contravenes this subsection if:
(a) the manager was given a notice of suspension in relation to the accreditation of the property under subsection 92(5) or 96(1); and
(b) export operations in relation to which the accreditation was suspended were carried out at the property while the accreditation was suspended.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) The manager of an accredited property commits an offence if the manager contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) The manager of an accredited property is liable to a civil penalty if the manager contravenes subsection (1).
Civil penalty: 240 penalty units.
Part 6—Revocation of accreditation
Division 1—Revocation requested by manager
101 Manager may request revocation
(1) The manager of an accredited property (including a property in relation to which a suspension is in effect under Part 5) may request the Secretary to revoke the accreditation of the property.
Note: If the manager does not wish to revoke the accreditation of the property in relation to all kinds of export operations and all kinds of prescribed goods, the manager may apply to vary the accreditation under Division 1 of Part 4.
(2) A request under subsection (1) must:
(a) be in writing; and
(b) include the information (if any) prescribed by the rules.
(3) If the Secretary receives a request from the manager of an accredited property under subsection (1), the Secretary must, by written notice to the manager, revoke the accreditation of the property, with effect on the day specified in the notice.
(4) Subsection (3) does not apply if, before the request under subsection (1) was made, the Secretary:
(a) had given the manager of the property a notice under subsection 102(2) in relation to the accreditation; and
(b) had not decided whether to revoke the accreditation or not.
Division 2—Revocation by Secretary
102 Grounds for revocation—general
(1) The Secretary may revoke the accreditation of a property (including a property in relation to which a suspension is in effect under Part 5) if the Secretary reasonably believes any of the following:
(a) the integrity of a kind of prescribed goods covered by the accreditation cannot be ensured;
(b) a requirement prescribed by rules made for the purposes of paragraph 79(2)(b) is no longer met;
(c) a condition of the accreditation has been, or is being, contravened;
(d) the manager of the property:
(i) failed to comply with a direction given to the manager by an authorised officer or the Secretary; or
(ii) failed to comply with a request by an authorised officer to provide information or a document; or
(iii) failed to provide facilities and assistance to an auditor as required by section 271; or
(iv) failed to comply with a request made by an auditor under section 272;
(e) the manager of the property has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under this Act; or
(ii) hindered or prevented a person from performing functions or exercising powers under this Act;
(f) the manager of the property or any other person who manages or controls export operations carried out at the property:
(i) made a false, misleading or incomplete statement in an application under this Chapter; or
(ii) gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under this Act; or
(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;
(g) the manager of the property has contravened a requirement of this Act in relation to the accreditation of the property;
(h) a ground prescribed by the rules exists.
Note: A decision to revoke the accreditation of a property is a reviewable decision (see Part 2 of Chapter 11).
Notice of proposed revocation
(2) The Secretary must not revoke the accreditation of a property under subsection (1) unless the Secretary has given a written notice to the manager of the property in accordance with subsection (3).
(3) A notice under subsection (2) must:
(a) specify the grounds for the proposed revocation; and
(b) subject to subsection (4), request the manager of the accredited property to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the accreditation should not be revoked; and
(c) include a statement setting out the manager’s right to seek review of a decision to revoke the accreditation.
(4) A notice under subsection (2) is not required to include the request referred to in paragraph (3)(b) if the Secretary reasonably believes that the grounds for the revocation are serious and urgent.
103 Grounds for revocation—overdue relevant Commonwealth liability
(1) The Secretary may revoke the accreditation of a property if:
(a) the accreditation is suspended under subsection 95(1) for non‑payment of a relevant Commonwealth liability; and
(b) within 90 days after the start of the suspension:
(i) the relevant Commonwealth liability had not been paid; or
(ii) the person (the debtor) who is liable to pay the relevant Commonwealth liability had not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.
Note: A decision to revoke the accreditation of a property under this section is a reviewable decision (see Part 2 of Chapter 11).
Secretary may direct that activities not be carried out
(2) If the Secretary revokes the accreditation of a property under subsection (1), the Secretary may refuse to carry out, or direct a person not to carry out, specified activities or kinds of activities in relation to the debtor under this Act until the relevant Commonwealth liability has been paid.
Note: See also section 309 (general provisions relating to directions).
Action under this section does not affect liability to pay relevant Commonwealth liability
(3) Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.
104 Notice of revocation
(1) If the Secretary decides to revoke the accreditation of a property under this Division, the Secretary must give the manager of the property a written notice stating the following:
(a) that the accreditation of the property is to be revoked;
(b) the reasons for the revocation;
(c) the date the revocation is to take effect.
Note: The notice must also state the matters referred to in section 382.
(2) If the manager was given a notice (a show cause notice) under subsection 102(2) that included the request referred to in paragraph 102(3)(b), the revocation must not take effect before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
Division 3—Other provisions
105 Secretary may require action to be taken after accreditation revoked
(1) This section applies if:
(a) a person was given notice of revocation of the accreditation of a property under subsection 101(3) or 104(1); or
(b) the accreditation of the property was revoked under Division 1 or 2.
(2) The Secretary may, in writing, direct the person to take specified action, within a specified period after the accreditation is revoked, in relation to the export operations and goods that were covered by the accreditation. The action must be action that is necessary for the purpose of achieving one or more objects of this Act.
(3) A direction to a person under subsection (2) must state that, if the person fails to comply with the direction, the person could commit an offence or be liable to a civil penalty.
Note: See also section 309 (general provisions relating to directions).
(4) A person who is given a direction under subsection (2) must comply with the direction.
Fault‑based offence
(5) A person commits an offence if:
(a) the person is given a direction under subsection (2); and
(b) the person engages in conduct; and
(c) the conduct contravenes the direction.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(6) A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 240 penalty units.
Part 7—Obligations of managers of accredited properties etc.
106 Conditions of accreditation must not be contravened
Accreditation that is not suspended
(1) A person contravenes this subsection if:
(a) the person is the manager of an accredited property; and
(b) the accreditation of the property is not suspended wholly or in part under Part 5; and
(c) the accreditation covers a kind of prescribed goods (the relevant goods) that may be exported:
(i) generally; or
(ii) to one or more places; and
(d) the relevant goods are:
(i) in the case of an accreditation referred to in subparagraph (c)(i)—exported to any place; or
(ii) in the case of an accreditation referred to in subparagraph (c)(ii)—exported to a place covered by the accreditation; and
(e) a condition of the accreditation relating to the relevant goods, or to export operations carried out in relation to the relevant goods, is contravened.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 240 penalty units.
Accreditation that is suspended
(4) A person contravenes this subsection if:
(a) the person is the manager of an accredited property; and
(b) the accreditation of the property is suspended wholly or in part under Part 5; and
(c) the accreditation covers a kind of prescribed goods (the relevant goods) that may be exported:
(i) generally; or
(ii) to one or more places; and
(d) the relevant goods are:
(i) in the case of an accreditation referred to in subparagraph (c)(i)—exported to any place; or
(ii) in the case of an accreditation referred to in subparagraph (c)(ii)—exported to a place covered by the accreditation; and
(e) a condition of the accreditation relating to the relevant goods, or to export operations carried out in relation to the relevant goods, is contravened; and
(f) the condition is required to be complied with during the period of the suspension.
Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 370).
Fault‑based offence
(5) A person commits an offence if the person contravenes subsection (4).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(6) A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 240 penalty units.
107 Additional or corrected information in relation to application for accreditation etc.
(1) The manager of an accredited property must comply with subsection (2) if:
(a) the manager becomes aware that information included in an application made by the manager under this Chapter, or information or a document given to the Secretary in relation to such an application, was incomplete or incorrect; or
(b) a change prescribed by the rules occurs.
(2) The manager of the property must, as soon as practicable, give the Secretary additional or corrected information, to the extent that it is relevant to assessing whether:
(a) the requirements of this Act in relation to a matter covered by the accreditation of the property have been, are being, or will be complied with; or
(b) importing country requirements relating to a matter covered by the accreditation of the property have been, are being, or will be met.
Note 1: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).
Note 2: The Secretary may suspend or revoke the accreditation of the property if the manager fails to comply with this subsection (see paragraphs 94(1)(g) and 102(1)(g)).
Note 3: This section is not subject to the privilege against self‑incrimination (see section 426).
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to give information to the Secretary under subsection (2); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
108 Notice of event or change in circumstances
(1) The manager of an accredited property must notify the Secretary, in writing, as soon as practicable after an event or circumstance prescribed by the rules occurs.
Civil penalty provision
(2) A person is liable to a civil penalty if:
(a) the person is required to notify the Secretary of an event or circumstance in accordance with subsection (1); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
109 Notice of person ceasing to be manager of accredited property
Notice by former manager
(1) If the manager (the former manager) of an accredited property ceases to be the manager of the property, the former manager (or another person who is legally authorised to act on behalf of the former manager) must, as soon as practicable after the cessation, notify the Secretary, in writing, of that fact. The notice must also include contact details for the person giving the notice.
Note: If the manager of an accredited property ceases to be the manager of the property, the accreditation of the property may be taken to have been suspended under rules made for the purposes of subsection (3).
Civil penalty provision
(2) A person is liable to a civil penalty if:
(a) the person is required to notify the Secretary under subsection (1); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
Rules may make provision in relation to accredited property that no longer has a manager or in relation to which manager has changed
(3) The rules may make provision for and in relation to the accreditation of a property that no longer has a manager or in relation to which there has been a change of manager.
(4) Without limiting subsection (3), the rules may do any of the following:
(a) provide that the accreditation of a property referred to in subsection (3) is suspended or revoked;
(b) prescribe requirements that must be complied with by any new manager of the property;
(c) make provision in relation to any other matters relating to the accreditation or any new manager.
Chapter 4—Registered establishments
Part 1—Introduction
110 Simplified outline of this Chapter
The Secretary may, on application by the occupier of an establishment, register the establishment for a kind of export operations in relation to a kind of prescribed goods.
An establishment may be registered for more than one kind of export operations in relation to more than one kind of prescribed goods for export to one or more places.
The registration of an establishment is subject to certain conditions.
The registration of an establishment may remain in force indefinitely or may cease to be in force on an expiry date.
If there is an expiry date for the registration of an establishment, the registration may be renewed.
The matters covered by the registration of an establishment or the conditions of the registration may be varied.
The registration of an establishment may be suspended wholly or in part, and may be revoked.
A show cause notice must be given to the occupier of a registered establishment before the registration may be varied, suspended or revoked (except in serious and urgent cases or if the occupier has requested the variation, suspension or revocation).
The Secretary may direct the occupier of a registered establishment to cease carrying out a kind of export operations in relation to a kind of prescribed goods in certain circumstances.
The occupier of a registered establishment must comply with certain obligations.
The Secretary must keep a register of information about registered establishments.
Part 2—Application for registration
111 Application for registration of establishment
(1) The occupier of an establishment (other than a registered establishment) may apply to the Secretary to register the establishment for a kind of export operations in relation to a kind of prescribed goods.
(2) An application:
(a) may relate to more than one kind of export operations and more than one kind of prescribed goods; and
(b) may, but is not required to, specify one or more places to which the goods are to be exported.
Note 1: The export of a kind of prescribed goods may be prohibited unless export operations in relation to the goods have been carried out at a registered establishment (see section 29 and rules made for the purposes of that section).
Note 2: Section 377 sets out requirements for applications.
112 Secretary must decide whether to register establishment
(1) On receiving an application under section 111 to register an establishment, the Secretary must decide:
(a) to register the establishment; or
(b) to refuse to register the establishment.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the application is to register the establishment for more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to register the establishment for some or all of those kinds of export operations in relation to some or all of those kinds of goods for export to some or all of those places.
Note 3: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 4: A decision to refuse to register an establishment for a kind of export operations in relation to a kind of prescribed goods is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(2) The Secretary may register the establishment for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a specified place to which the goods may be exported if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that the following requirements are met:
(a) the occupier of the establishment is a fit and proper person (having regard to the matters referred to in section 372);
(b) either:
(i) all relevant Commonwealth liabilities of the occupier of the establishment, or relating to the establishment, have been paid or are taken to have been paid; or
(ii) if one or more relevant Commonwealth liabilities of the occupier, or relating to the establishment, have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;
(c) the construction of the establishment and its equipment and facilities are suitable for carrying out export operations of that kind in relation to goods of that kind (having regard to the matters prescribed by the rules);
(d) if the rules require export operations of that kind to be carried out in relation to goods of that kind in accordance with an approved arrangement—an approved arrangement covering that kind of export operations and that kind of goods is in force;
(e) if export operations, or other operations, are to be carried out in relation to different kinds of goods at the establishment—the operations:
(i) are compatible with each other; and
(ii) will not have a detrimental effect on export operations to be carried out in relation to a kind of prescribed goods at the establishment;
(f) any other requirement prescribed by the rules.
Note: For the purposes of paragraph (b), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).
(3) If the Secretary registers the establishment, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the registration.
Note 1: If there is no expiry date for the registration of an establishment, the registration remains in force unless it is revoked (see subsection 115(1)).
Note 2: A decision to set an expiry date for the registration of an establishment is a reviewable decision (see Part 2 of Chapter 11).
(4) The Secretary may set an expiry date for the registration of an establishment under subsection (3) even if rules made for the purposes of subsection 115(5) apply in relation to the registration.
113 Conditions of registration
(1) The registration of an establishment is subject to:
(a) the conditions provided by this Act; and
(b) the conditions prescribed by the rules (other than any of those conditions that the Secretary decides are not to be conditions of the registration); and
(c) any additional conditions that the Secretary considers appropriate and that are specified in the notice given to the applicant with the certificate of registration.
Note 1: The occupier of a registered establishment may commit an offence or be liable to a civil penalty if a condition of the registration is contravened (see section 144).
Note 2: The registration of an establishment may be suspended or revoked if a condition of the registration is contravened (see sections 127 and 138).
Note 3: A decision to register an establishment subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).
Note 4: Part 7 sets out additional obligations of the occupier of a registered establishment.
(2) Without limiting paragraph (1)(b), the rules may prescribe conditions in relation to any or all of the following:
(a) the occupier of an establishment;
(b) the kind of establishment;
(c) a kind of export operations;
(d) a kind of prescribed goods;
(e) importing country requirements relating to a kind of export operations or a kind of prescribed goods.
(3) For the purposes of this Act, conditions to which the registration of an establishment is subject under subsection (1) or section 118 are conditions of the registration.
114 Notice of decision and certificate of registration
If the Secretary registers an establishment, the Secretary must give the applicant:
(a) a certificate of registration stating the following information:
(i) the registration number allocated to the establishment;
(ii) each kind of export operations and each kind of prescribed goods covered by the registration;
(iii) if applicable, each place where a kind of prescribed goods covered by the registration may be exported;
(iv) the date the registration takes effect;
(v) that the registration remains in force indefinitely or the expiry date for the registration;
(vi) any other information prescribed by the rules; and
(b) a written notice stating the following:
(i) any conditions prescribed by the rules that the Secretary has decided are not to be conditions of the registration;
(ii) any additional conditions of the registration;
(iii) any other information prescribed by the rules.
115 Period of effect of registration
Registrations that have no expiry date
(1) If there is no expiry date for the registration of an establishment, the registration remains in force unless:
(a) it is revoked under Part 6; or
(b) it is taken to have been revoked under section 147.
Registrations that have an expiry date
(2) If there is an expiry date for the registration of an establishment (including registration that has been renewed under Part 3), the registration remains in force until the end of that expiry date unless:
(a) the registration is renewed under Part 3 on or before that date; or
(b) the registration is revoked under Part 6, or is taken to have been revoked under section 147, on or before that date.
(3) There is an expiry date for the registration of an establishment if:
(a) rules made for the purposes of subsection (5) apply in relation to the registration; or
(b) an expiry date for the registration set under subsection 112(3) or 117(3) or paragraph 123(1)(c) or (d) is in force in relation to the registration.
(4) The expiry date for the registration of an establishment is:
(a) if rules made for the purposes of subsection (5) apply in relation to the registration and no expiry date set under subsection 112(3) or 117(3) or paragraph 123(1)(c) or (d) is in force in relation to the registration—the last day of the period prescribed by the rules; or
(b) if an expiry date for the registration set under subsection 112(3) or 117(3) or paragraph 123(1)(c) or (d) is in force in relation to the registration—that date.
Rules may prescribe period of effect of registration
(5) The rules may prescribe the period during which the registration of an establishment remains in force. The rules may apply in relation to:
(a) registration of establishments generally; or
(b) registrations of establishments for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a place to which the goods may be exported.
Part 3—Renewal of registration
116 Application to renew registration of establishment
(1) This section applies in relation to a registered establishment (including an establishment in relation to which a suspension is in effect under Part 5) if there is an expiry date for the registration.
Note: See subsections 115(3) and (4) in relation to the expiry date for the registration of an establishment.
(2) The occupier of the establishment may apply to the Secretary to renew the registration of the establishment.
Note: Section 377 sets out requirements for applications.
(3) An application for renewal:
(a) may relate to more than one kind of export operations and more than one kind of prescribed goods; and
(b) may, but is not required to, specify one or more places to which the goods are to be exported.
(4) An application for renewal must be made:
(a) within the period prescribed by the rules; or
(b) if the Secretary allows a longer period—within that longer period.
(5) If an application to renew the registration of an establishment is made after the period applying under subsection (4):
(a) the application is taken to be an application to register the establishment; and
(b) Part 2 applies in relation to the application; and
(c) the other provisions of this Part do not apply in relation to the application.
117 Secretary must decide whether to renew registration
(1) On receiving an application under section 116 to renew the registration of an establishment, the Secretary must decide:
(a) to renew the registration; or
(b) to refuse to renew the registration.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the application is to renew the registration of the establishment for more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to renew the registration for some or all of those kinds of export operations in relation to some or all of those kinds of goods for export to some or all of those places.
Note 3: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 4: A decision to refuse to renew the registration of an establishment for a kind of export operations in relation to a kind of prescribed goods is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(2) The Secretary may refuse to renew the registration of the establishment for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a specified place to which the goods may be exported if the Secretary is not satisfied, having regard to any matter that the Secretary considers relevant, of one or more of the following:
(a) the occupier of the establishment is a fit and proper person (having regard to the matters referred to in section 372);
(b) either:
(i) all relevant Commonwealth liabilities of the occupier of the establishment, or relating to the establishment, have been paid or are taken to have been paid; or
(ii) if one or more relevant Commonwealth liabilities of the occupier, or relating to the establishment, have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;
(c) the occupier of the establishment has complied with the requirements of this Act in relation to the export operations and prescribed goods covered by the registration (whether at the establishment or not);
(d) the conditions of the registration have been, and are being, complied with;
(e) the construction of the establishment and its equipment and facilities are suitable for carrying out export operations of that kind in relation to goods of that kind (having regard to the matters prescribed by the rules);
(f) if the rules require export operations of that kind to be carried in relation to goods of that kind in accordance with an approved arrangement—an approved arrangement covering that kind of export operations and that kind of goods is in force;
(g) any other requirement prescribed by the rules is met.
Note: For the purposes of paragraph (b), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).
(3) If the Secretary renews the registration of the establishment, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the registration.
Note 1: If there is no expiry date for the registration of an establishment, the registration remains in force unless it is revoked (see subsection 115(1)).
Note 2: A decision to set an expiry date for the renewed registration of an establishment is a reviewable decision (see Part 2 of Chapter 11).
(4) The Secretary may set an expiry date for the registration of an establishment under subsection (3) even if rules made for the purposes of subsection 115(5) apply in relation the registration.
118 Conditions of renewed registration
If the Secretary renews the registration of an establishment, the registration is subject to:
(a) the conditions provided by this Act; and
(b) the conditions prescribed by rules made for the purposes of paragraph 113(1)(b) (other than any of those conditions that the Secretary decides are not to be conditions of the registration); and
(c) any additional conditions that the Secretary considers appropriate and that are specified in the notice given under section 119.
Note 1: The occupier of a registered establishment may commit an offence or be liable to a civil penalty if a condition of the registration is contravened (see section 144).
Note 2: The registration of an establishment may be suspended or revoked if a condition of the registration is contravened (see sections 127 and 138).
Note 3: A decision to renew the registration of an establishment subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).
Note 4: Part 7 sets out additional obligations of the occupier of a registered establishment.
119 Notice of decision and certificate of registration
If the registration of an establishment is renewed, the Secretary must give the applicant:
(a) a certificate of registration stating the information referred to in paragraph 114(a); and
(b) a written notice stating the information referred to in paragraph 114(b).
Part 4—Variation of registration
Division 1—Application by occupier
120 Application by occupier for variation of registration or approval of alteration of establishment
(1) The occupier of a registered establishment may apply to the Secretary:
(a) to vary the registration in relation to any of the following matters (including by adding or removing any of those matters):
(i) kinds of export operations;
(ii) kinds of prescribed goods;
(iii) if applicable, places to which goods may be exported; or
(b) to approve an alteration of the establishment (including an addition to the establishment); or
(c) to vary the conditions of the registration; or
(d) to vary the particulars relating to the registration to make a minor change to a matter (including to correct a minor or technical error); or
(e) to vary any other aspect of the registration.
Example: For the purposes of paragraph (e), a variation may be needed to change the name of a person who manages or controls, or will manage or control, export operations covered by the registration.
Note: Section 377 sets out requirements for applications. A single application may be made to make or approve a variation in relation to the registration of an establishment and to renew the registration of the establishment.
(2) If the Secretary receives an application under subsection (1) to make a variation or approve an alteration, the Secretary must decide:
(a) to make the variation or approve the alteration; or
(ab) to make the variation, or approve the alteration, with additional conditions or variations of conditions; or
(b) to refuse to make the variation or approve the alteration.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 3: A decision to approve the application with additional conditions or variations of conditions, or to refuse the application, is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(3) The Secretary may make a decision under paragraph (2)(a) or, subject to subsections (4) and (5), paragraph (2)(ab), if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that, if the decision is made:
(a) the requirements referred to in paragraphs 112(2)(b) to (f) would continue to be met; and
(b) any other requirement prescribed by the rules would be met; and
(c) in the case of a variation because a new person (other than the occupier of the 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 (having regard to the matters referred to in section 372).
Note: The occupier of a registered establishment may commit an offence or be liable to a civil penalty if:
(a) the establishment is altered (including by way of addition to the establishment); and
(b) the alteration has not been approved, or the occupier has not been given notice of the approval (see section 122).
Making variation or approving alteration with additional conditions or variations of conditions
(4) The Secretary may make the variation, or approve the alteration, with additional conditions or variations of conditions under paragraph (2)(ab) only if the Secretary reasonably believes that the additional conditions or variations of conditions are necessary:
(a) to ensure the integrity of a kind of prescribed goods covered by the registration; or
(b) to ensure:
(i) compliance with the requirements of this Act in relation to the export operations and prescribed goods covered by the registration; or
(ii) that importing country requirements relating to the export operations and prescribed goods covered by the registration are, or will be, met; or
(c) to ensure compliance with a condition of the registration; or
(d) to address circumstances relating to the condition of, or the equipment or facilities in, the registered establishment that have changed or will change; or
(e) to address circumstances relating to a change to the suitability of the establishment for the export operations covered by the registration; or
(f) to correct a minor or technical error; or
(g) for any other reason prescribed by the rules.
(5) The Secretary must not make a decision under paragraph (2)(ab) unless the Secretary has given a written notice to occupier of the establishment in accordance with subsection (6).
(6) The written notice must:
(a) specify each proposed additional condition or variation of a condition; and
(b) specify the grounds for each proposed additional condition or variation of condition; and
(c) request the occupier of the establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed additional conditions or variations of conditions should not be made; and
(d) include a statement setting out the occupier’s right to seek a review of a decision made under paragraph (2)(ab).
121 Notice of variation or approval of alteration
(1) If the Secretary makes a variation or approves an alteration in relation to the registration of an establishment under paragraph 120(2)(a), the Secretary must give the occupier of the establishment written notice of the variation or approval.
Variation or approval
(2) The notice must state the following:
(a) details of the variation or approval;
(b) if the variation is of the conditions of the registration—the varied conditions;
(c) the date the variation or approval takes effect;
(d) any other information prescribed by the rules.
(3) If the certificate of registration for the establishment needs to be changed to take account of the variation or approval, the Secretary must, within 7 days after making the variation or giving the approval, give the occupier of the establishment a new certificate of registration including the variation or alteration that has been approved.
Note: The registration, as varied, remains in force as provided by section 115.
Variation or approval with additional conditions or variations of conditions
(4) If the Secretary makes a variation, or approves an alteration, with additional conditions or variations of conditions in relation to the registration of an establishment under paragraph 120(2)(ab), the Secretary must give the occupier of the establishment written notice of the variation or approval.
(5) The notice must state the following:
(a) the details of the variation or approval;
(b) if the Secretary varied the conditions of the registration as requested in the application under subsection 120(1)—the varied conditions;
(c) the additional conditions or variations of conditions;
(d) the date the variation, approval, varied conditions or additional conditions take effect, which must not be before the earlier of the following:
(i) the day after any response requested in the written notice (the show cause notice) given to the occupier under subsection 120(5) is received by the Secretary;
(ii) the end of 14 days after the show cause notice was given;
(e) any other information prescribed by the rules.
(6) If the certificate of registration for the establishment needs to be changed to take account of the variation, approval, varied conditions or additional conditions, the Secretary must, within 7 days after making the variation or giving the approval, give the occupier of the establishment a new certificate of registration including the variation, alteration that has been approved, varied conditions or additional conditions.
Note: The registration, as varied, remains in force as provided by section 115.
122 Certain alterations of registered establishment must not be made unless approved etc.
(1) The occupier of a registered establishment contravenes this subsection if:
(a) the establishment is altered (including by way of addition to the establishment); and
(b) either:
(i) the alteration has not been approved under subsection 120(2); or
(ii) the alteration has been approved under paragraph 120(2)(a) or 120(2)(ab) but the Secretary has not given the occupier notice of the approval under section 121.
Note 1: The physical elements of an offence against subsection (3) are set out in this subsection (see section 370).
Note 2: The Secretary may suspend or revoke the registration of the establishment if the occupier contravenes this subsection (see paragraphs 127(1)(j) and 138(1)(j)).
(2) Subsection (1) does not apply to an alteration of a kind prescribed by the rules.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).
Fault‑based offence
(3) The occupier of a registered establishment commits an offence if the occupier contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(4) The occupier of a registered establishment is liable to a civil penalty if the occupier contravenes subsection (1).
Civil penalty: 240 penalty units.
Division 2—Variation by Secretary
123 Secretary may make variations in relation to registration
(1) The Secretary may do any of the following in relation to the registration of an establishment:
(a) vary any aspect of the registration, including so that it does not cover:
(i) a kind of export operations; or
(ii) a kind of prescribed goods; or
(iii) if applicable, a place to which goods may be exported;
(b) vary the conditions of the registration (including by imposing new conditions);
(c) if there is no expiry date for the registration—vary the registration by setting an expiry date for the registration;
(d) if there is an expiry date for the registration (whether under paragraph 115(4)(a) or (b))—vary the registration by setting a different expiry date for the registration;
(e) if there is an expiry date for the registration under paragraph 115(4)(b)—vary the registration by revoking that expiry date.
Note 1: If the Secretary revokes the expiry date for the registration under paragraph (e), the registration will remain in force:
(a) if rules made for the purposes of subsection 115(5) apply in relation to the registration—for the period prescribed by the rules; or
(b) if there are no such rules—indefinitely (unless it is revoked).
Note 2: Certain decisions under subsection (1) are reviewable decisions (see Part 2 of Chapter 11).
(2) The Secretary may make a variation in relation to the registration of an establishment under paragraph (1)(a), (b) or (c), or set an earlier expiry date for the registration under paragraph (1)(d), only if the Secretary reasonably believes that:
(a) the integrity of a kind of prescribed goods covered by the registration cannot be ensured; or
(b) it is necessary to do so to ensure:
(i) compliance with the requirements of this Act in relation to the export operations and prescribed goods covered by the registration; or
(ii) that importing country requirements relating to the export operations and prescribed goods covered by the registration are, or will be, met; or
(c) the occupier of the establishment is not a fit and proper person (having regard to the matters referred to in section 372); or
(d) a condition of the registration has been, or is being, contravened; or
(e) the condition of, or the equipment or facilities in, the establishment has changed; or
(f) there has been a change to the suitability of the establishment for the export operations covered by the registration; or
(g) it is necessary to do so:
(i) to take account of an event notified under section 146; or
(ii) to correct a minor or technical error; or
(h) the registration needs to be varied for any other reason prescribed by the rules.
Notice of certain proposed variations
(3) The Secretary must not make a variation in relation to the registration of an establishment under paragraph (1)(a), (b) or (c), or set an earlier expiry date for the registration under paragraph (1)(d), unless the Secretary has given a written notice to the occupier of the establishment in accordance with subsection (4).
(4) A notice under subsection (3) must:
(a) specify each proposed variation; and
(b) specify the grounds for each proposed variation; and
(c) subject to subsection (5), request the occupier of the establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed variation should not be made; and
(d) include a statement setting out the occupier’s right to seek review of a decision to make the proposed variation.
(5) A notice under subsection (3) is not required to include the request referred to in paragraph (4)(c) if the Secretary reasonably believes that the grounds for the proposed variation are serious and urgent.
124 Notice of variation
(1) If the Secretary makes a variation in relation to the registration of an establishment under subsection 123(1), the Secretary must give the occupier of the establishment written notice of the variation.
(2) The notice must state the following:
(a) details of the variation;
(b) if the variation is of the conditions of the registration—the varied conditions and any new conditions;
(c) if the variation affects the period of effect of the registration:
(i) the expiry date for the registration under paragraph 115(4)(a) or (b) (whichever applies); or
(ii) if there is no expiry date for the registration—that the registration remains in force unless it is revoked;
(d) the date the variation takes effect;
(e) any other information prescribed by the rules.
(3) If the occupier was given a notice (a show cause notice) under subsection 123(3) that included the request referred to in paragraph 123(4)(c), the variation must not take effect before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
(4) If the certificate of registration for the establishment needs to be changed to take account of the variation, the Secretary must, within 7 days after making the variation, give the occupier of the establishment a new certificate of registration including the variation.
Note: The registration, as varied, remains in force as provided by section 115.
Part 5—Suspension of registration
Division 1—Suspension requested by occupier
125 Occupier may request suspension
(1) Subject to subsection (2), the occupier of a registered establishment may request the Secretary to suspend the registration of the establishment in relation to a kind of export operations and a kind of prescribed goods and, if applicable, a place to which goods may be exported.
(2) A request may be made under subsection (1) only in the circumstances prescribed by the rules.
(3) A request under subsection (1) may relate to more than one kind of export operations or more than one kind of prescribed goods and, if applicable, more than one place.
(4) A request under subsection (1) must:
(a) be in writing; and
(b) state each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the registration is to be suspended; and
(c) state the reason for the suspension; and
(d) include any other information prescribed by the rules.
(5) If the Secretary receives a request from the occupier of a registered establishment under subsection (1), the Secretary must, by written notice to the occupier, suspend the registration as requested, with effect on the day specified in the notice.
126 Request to revoke suspension
(1) If the registration of an establishment is suspended under section 125, the occupier of the establishment may request the Secretary to revoke the suspension.
(2) A request under subsection (1) must:
(a) be in writing; and
(b) state the reason for the request; and
(c) include any other information prescribed by the rules.
(3) If the Secretary receives a request from the occupier of a registered establishment under subsection (1), the Secretary may:
(a) if the Secretary is satisfied that the reason for the suspension no longer exists and there is no reason why the suspension should not be revoked—revoke the suspension by written notice to the occupier; or
(b) in any other case:
(i) suspend the registration of the establishment under Division 2 of this Part; or
(ii) revoke the registration of the establishment under Division 2 of Part 6.
Note: A decision to suspend or revoke the registration of the establishment is a reviewable decision (see Part 2 of Chapter 11).
Division 2—Suspension by Secretary
127 Grounds for suspension—general
(1) The Secretary may suspend the registration of an establishment in relation to one or more kinds of export operations and one or more kinds of prescribed goods and, if applicable, one or more places to which goods may be exported if the Secretary reasonably believes any of the following:
(a) the integrity of a kind of prescribed goods covered by the registration cannot be ensured;
(b) the occupier of the establishment is not a fit and proper person (having regard to the matters referred to in section 372);
(c) a requirement referred to in subsection 112(2) is no longer met;
(d) a condition of the registration has been, or is being, contravened;
(e) the condition of, or the equipment or facilities in, the establishment has changed;
(f) there has been a change to the suitability of the establishment for the export operations covered by the registration;
(g) the occupier of the establishment:
(i) failed to comply with a direction given to the occupier by an authorised officer or the Secretary; or
(ii) failed to comply with a request by an authorised officer to provide information or a document; or
(iii) failed to provide facilities and assistance to an auditor as required by section 271; or
(iv) failed to comply with a request made by an auditor under section 272;
(h) the occupier of the establishment has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under this Act; or
(ii) hindered or prevented a person from performing functions or exercising powers under this Act;
(i) the occupier of the establishment or any other person who manages or controls export operations carried out at the establishment:
(i) made a false, misleading or incomplete statement in an application under this Chapter; or
(ii) gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under this Act; or
(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;
(j) the occupier of the establishment has contravened a requirement of this Act in relation to the registration of the establishment;
(k) a ground prescribed by the rules exists.
Note 1: A suspension must not be for more than 12 months (see section 130).
Note 2: A decision to suspend the registration of an establishment under this section is a reviewable decision (see Part 2 of Chapter 11).
Notice of proposed suspension
(2) The Secretary must not suspend the registration of an establishment under subsection (1) unless the Secretary has given a written notice to the occupier of the establishment in accordance with subsection (3).
(3) A notice under subsection (2) must:
(a) specify each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the registration is proposed to be suspended; and
(b) specify the grounds for the proposed suspension; and
(c) subject to subsection (4), request the occupier of the registered establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the registration should not be suspended as proposed; and
(d) include a statement setting out the occupier’s right to seek review of a decision to suspend the registration as proposed.
(4) A notice under subsection (2) is not required to include the request referred to in paragraph (3)(c) if the Secretary reasonably believes that the grounds for the suspension are serious and urgent.
128 Grounds for suspension—overdue relevant Commonwealth liability
Notice of proposed suspension
(1) The Secretary may suspend the registration of an establishment in relation to all kinds of export operations and all kinds of prescribed goods if:
(a) a relevant Commonwealth liability of the occupier of the establishment, or relating to the establishment, is more than 30 days overdue; and
(b) the Secretary has given a written notice to the person (the debtor) who is liable to pay the relevant Commonwealth liability in accordance with subsection (2); and
(c) within 8 days after the notice is given:
(i) the relevant Commonwealth liability has not been paid; or
(ii) the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.
Note 1: A suspension must not be for more than 12 months (see section 130).
Note 2: A decision to suspend the registration of an establishment under this section is a reviewable decision (see Part 2 of Chapter 11).
Note 3: If the Secretary suspends the registration of the establishment under this section, the Secretary may revoke the registration of the establishment in certain circumstances (see section 139).
(2) A notice under subsection (1) must:
(a) state that a relevant Commonwealth liability of the debtor in relation to a registered establishment is more than 30 days overdue; and
(b) state that the Secretary may suspend the registration of the establishment in relation to all kinds of export operations and all kinds of prescribed goods if, within 8 days after the notice is given:
(i) the relevant Commonwealth liability is not paid; or
(ii) the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability; and
(c) include a statement setting out the debtor’s right to seek review of a decision to suspend the registration of the establishment.
Secretary may direct that activities not be carried out
(3) If the Secretary suspends the registration of an establishment under subsection (1), the Secretary may refuse to carry out, or direct a person not to carry out, specified activities or kinds of activities in relation to the debtor under this Act until the relevant Commonwealth liability has been paid.
Note: See also section 309 (general provisions relating to directions).
Action under this section does not affect liability to pay relevant Commonwealth liability
(4) Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.
129 Notice of suspension
(1) If the Secretary decides to suspend the registration of an establishment under this Division, the Secretary must give the occupier of the establishment a written notice stating the following:
(a) that the registration is to be suspended, for the period specified in the notice, in relation to all or specified kinds of export operations and all or specified kinds of prescribed goods and, if applicable, all or specified places to which goods may be exported;
(b) the reasons for the suspension;
(c) the date the suspension is to start;
(d) the period of the suspension.
Note: The notice must also state the matters referred to in section 382.
(2) If the occupier was given a notice (a show cause notice) under subsection 127(2) that included the request referred to in paragraph 127(3)(c), the suspension must not start before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
130 Period of suspension
(1) A suspension of the registration of an establishment under this Division must not be for more than 12 months.
(2) The Secretary may vary the period of a suspension under this Division by written notice to the occupier of the establishment. However, the total period of the suspension must not be more than 12 months.
Note: A decision to extend the period of a suspension is a reviewable decision (see Part 2 of Chapter 11).
131 Revocation of suspension
The Secretary may revoke a suspension of the registration of an establishment under this Division by written notice to the occupier of the establishment.
Division 3—Direction to cease carrying out export operations
132 Direction to cease carrying out export operations—failure to comply with conditions or requirements of this Act etc.
(1) The Secretary may give the occupier of a registered establishment a written direction to cease carrying out one or more kinds of export operations in relation to particular prescribed goods, or a kind of prescribed goods, covered by the registration if the Secretary reasonably suspects that:
(a) a condition of the registration of the establishment has been contravened, or it is likely that such a condition will be contravened; or
(b) the occupier has not complied, or is likely not to comply, with a requirement of this Act; or
(c) the integrity of the particular prescribed goods, or the kind of prescribed goods, covered by the registration cannot be ensured, or it is likely that the integrity of the particular prescribed goods, or the kind of prescribed goods, covered by the registration will not be able to be ensured; or
(d) the particular prescribed goods, or the kind of prescribed goods, covered by the registration:
(i) do not comply, or are not likely to comply, with a requirement of this Act that applies in relation to the goods; or
(ii) do not meet, or are not likely to meet, an importing country requirement relating to the goods.
Note 1: An authorised officer may also give a direction to the occupier of the registered establishment (see section 305).
Note 2: See also section 309 (general provisions relating to directions).
(2) A direction under subsection (1) must state:
(a) the reasons for giving the direction; and
(b) the date that the occupier is to cease carrying out the relevant export operations in relation to the particular prescribed goods or kind of prescribed goods (as the case may be); and
(c) that the person may commit an offence or be liable to a civil penalty if the person fails to comply with the direction.
Registration taken to have been suspended
(3) If a direction is given to the occupier of a registered establishment under subsection (1) to cease carrying out one or more kinds of export operations in relation to one or more kinds of prescribed goods covered by the registration, the registration of the establishment is taken to have been suspended in relation to those kinds of export operations and those kinds of goods until the direction is revoked.
133 Occupier must comply with direction
(1) If the occupier of a registered establishment is given a direction under subsection 132(1), the occupier must comply with the direction.
Fault‑based offence
(2) The occupier of a registered establishment commits an offence if:
(a) the occupier is given a direction under subsection 132(1); and
(b) the occupier engages in conduct; and
(c) the conduct contravenes the direction.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) The occupier of a registered establishment is liable to a civil penalty if the occupier contravenes subsection (1).
Civil penalty: 240 penalty units.
134 Revocation of direction
(1) The Secretary must revoke a direction given to the occupier of a registered establishment under subsection 132(1) if the Secretary is satisfied that the reasons for the direction no longer exist.
(2) The Secretary must give the occupier of the registered establishment written notice of the revocation.
Division 4—Other provisions
135 Effect of suspension
(1) If the registration of an establishment is suspended wholly or in part under Division 1 or 2, or is taken to have been suspended under subsection 132(3):
(a) the registration of the establishment remains in force while it is suspended; and
(b) subject to rules made for the purposes of subsection (2), the requirements of this Act in relation to the registration (including the conditions of the registration) must be complied with while the registration is suspended.
(2) The rules may prescribe requirements of this Act (including conditions of the registration of an establishment) that are not required to be complied with during any period when the registration is suspended.
136 Export operations must not be carried out while registration suspended
(1) The occupier of a registered establishment contravenes this subsection if:
(a) the occupier was given a notice of suspension in relation to the registration of the establishment under subsection 125(5) or 129(1); and
(b) export operations in relation to which the registration was suspended were carried out at the establishment while the registration was suspended.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) The occupier of a registered establishment commits an offence if the occupier contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) The occupier of a registered establishment is liable to a civil penalty if the occupier contravenes subsection (1).
Civil penalty: 240 penalty units.
Part 6—Revocation of registration
Division 1—Revocation requested by occupier
137 Occupier may request revocation
(1) The occupier of a registered establishment (including an establishment in relation to which a suspension is in effect under Part 5) may request the Secretary to revoke the registration of the establishment.
Note: If the occupier does not wish to revoke the registration of the establishment in relation to all kinds of export operations and all kinds of prescribed goods, the occupier may apply to vary the registration under Division 1 of Part 4.
(2) A request under subsection (1) must:
(a) be in writing; and
(b) include the information (if any) prescribed by the rules.
(3) If the Secretary receives a request from the occupier of a registered establishment under subsection (1), the Secretary must, by written notice to the occupier, revoke the registration of the establishment with effect on the day specified in the notice.
(4) Subsection (3) does not apply if, before the request under subsection (1) was made, the Secretary:
(a) had given the occupier of the establishment a notice under subsection 138(2) in relation to the registration; and
(b) had not decided whether to revoke the registration or not.
Division 2—Revocation by Secretary
138 Grounds for revocation—general
(1) The Secretary may revoke the registration of an establishment (including an establishment in relation to which a suspension is in effect under Part 5) if the Secretary reasonably believes any of the following:
(a) the integrity of a kind of prescribed goods covered by the registration cannot be ensured;
(b) the occupier of the establishment is not a fit and proper person (having regard to the matters referred to in section 372);
(c) a requirement referred to in subsection 112(2) is no longer met;
(d) a condition of the registration has been, or is being, contravened;
(e) the condition of, or the equipment or facilities in, the establishment has changed;
(f) there has been a change to the suitability of the establishment for the export operations covered by the registration;
(g) the occupier of the establishment:
(i) failed to comply with a direction given to the occupier by an authorised officer or the Secretary; or
(ii) failed to comply with a request by an authorised officer to provide information or a document; or
(iii) failed to provide facilities and assistance to an auditor as required by section 271; or
(iv) failed to comply with a request made by an auditor under section 272;
(h) the occupier of the establishment has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under this Act; or
(ii) hindered or prevented a person from performing functions or exercising powers under this Act;
(i) the occupier of the establishment or any other person who manages or controls export operations carried out at the establishment:
(i) made a false, misleading or incomplete statement in an application under this Chapter; or
(ii) gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under this Act; or
(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;
(j) the occupier of the establishment has contravened a requirement of this Act in relation to the registration of the establishment;
(k) a ground prescribed by the rules exists.
Note: A decision to revoke the registration of an establishment under this section is a reviewable decision (see Part 2 of Chapter 11).
Notice of proposed revocation
(2) The Secretary must not revoke the registration of an establishment under subsection (1) unless the Secretary has given a written notice to the occupier of the establishment in accordance with subsection (3).
(3) A notice under subsection (2) must:
(a) specify the grounds for the proposed revocation; and
(b) subject to subsection (4), request the occupier of the registered establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the registration should not be revoked; and
(c) include a statement setting out the occupier’s right to seek review of a decision to revoke the registration.
(4) A notice under subsection (2) is not required to include the request referred to in paragraph (3)(b) if the Secretary reasonably believes that the grounds for the revocation are serious and urgent.
139 Grounds for revocation—overdue relevant Commonwealth liability
(1) The Secretary may revoke the registration of an establishment if:
(a) the registration is suspended under subsection 128(1) for non‑payment of a relevant Commonwealth liability; and
(b) within 90 days after the start of the suspension:
(i) the relevant Commonwealth liability had not been paid; or
(ii) the person (the debtor) who is liable to pay the relevant Commonwealth liability had not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.
Note: A decision to revoke the registration of an establishment under this section is a reviewable decision (see Part 2 of Chapter 11).
Secretary may direct that activities not be carried out
(2) If the Secretary revokes the registration of an establishment under subsection (1), the Secretary may refuse to carry out, or direct a person not to carry out, specified activities or kinds of activities in relation to the debtor under this Act until the relevant Commonwealth liability has been paid.
Note: See also section 309 (general provisions relating to directions).
Action under this section does not affect liability to pay relevant Commonwealth liability
(3) Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.
140 Notice of revocation
(1) If the Secretary decides to revoke the registration of an establishment under this Division, the Secretary must give the occupier of the establishment a written notice stating the following:
(a) that the registration of the establishment is to be revoked;
(b) the reasons for the revocation;
(c) the date the revocation is to take effect.
Note: The notice must also state the matters referred to in section 382.
(2) If the occupier was given a notice (a show cause notice) under subsection 138(2) that included the request referred to in paragraph 138(3)(b), the revocation must not take effect before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
Division 3—Other provisions
141 Export operations must not be carried out after registration of establishment revoked
(1) A person contravenes this subsection if:
(a) the person was the occupier of a registered establishment; and
(b) the person was given notice of revocation of the registration of the establishment under subsection 137(3) or 140(1); and
(c) export operations that were covered by the registration of the establishment were carried out at the establishment after the revocation took effect.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 240 penalty units.
142 Secretary may require action to be taken after registration revoked
(1) This section applies if:
(a) a person was given notice of revocation of the registration of an establishment under subsection 137(3) or 140(1); or
(b) the registration of the establishment was revoked under Division 1 or 2.
(2) The Secretary may, in writing, direct the occupier of the establishment to take specified action, within a specified period after the registration is revoked, in relation to the export operations and prescribed goods that were covered by the registration. The action must be action that is necessary for the purpose of achieving one or more objects of this Act.
(3) A direction to a person under subsection (2) must state that the person could commit an offence or be liable to a civil penalty if the person fails to comply with the direction.
Note: See also section 309 (general provisions relating to directions).
(4) A person who is given a direction under subsection (2) must comply with the direction.
Fault‑based offence
(5) A person commits an offence if:
(a) the person is given a direction under subsection (2); and
(b) the person engages in conduct; and
(c) the conduct contravenes the direction.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(6) A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 240 penalty units.
Part 7—Obligations of occupiers of registered establishments
143 Export operations not covered by registration must not be carried out
(1) The occupier of a registered establishment contravenes this subsection if:
(a) a kind of export operations is carried out in relation to a kind of prescribed goods at the establishment; and
(b) the registration of the establishment does not cover that kind of export operations in relation to that kind of goods.
Fault‑based offence
(2) The occupier of a registered establishment commits an offence if the occupier contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) The occupier of a registered establishment is liable to a civil penalty if the occupier contravenes subsection (1).
Civil penalty: 240 penalty units.
144 Conditions of registration must not be contravened
Registration that is not suspended
(1) A person contravenes this subsection if:
(a) the person is the occupier of a registered establishment; and
(b) the registration is not suspended wholly or in part under Part 5; and
(c) a condition of the registration is contravened.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 240 penalty units.
Registration that is suspended
(4) A person contravenes this subsection if:
(a) the person is the occupier of a registered establishment; and
(b) the registration is suspended wholly or in part under Part 5; and
(c) a condition of the registration is contravened; and
(d) the condition is required to be complied with during the period of the suspension.
Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 370).
Fault‑based offence
(5) A person commits an offence if the person contravenes subsection (4).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(6) A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 240 penalty units.
145 Additional or corrected information in relation to application for registration etc.
(1) The occupier of a registered establishment must comply with subsection (2) if:
(a) the occupier becomes aware that information included in an application made by the occupier under this Chapter, or information or a document given to the Secretary in relation to such an application, was incomplete or incorrect; or
(b) a change prescribed by the rules occurs.
(2) The occupier of the establishment must, as soon as practicable, give the Secretary additional or corrected information, to the extent that it is relevant to assessing whether:
(a) the requirements of this Act in relation to a matter covered by the registration of the establishment have been, are being, or will be complied with; or
(b) importing country requirements relating to a matter covered by the registration of the establishment have been, are being, or will be met.
Note 1: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).
Note 2: The Secretary may suspend or revoke the registration of the establishment if the occupier fails to comply with this subsection (see paragraphs 127(1)(j) and 138(1)(j)).
Note 3: This section is not subject to the privilege against self‑incrimination (see section 426).
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to give information to the Secretary under subsection (2); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
146 Notice of changes to occupier of registered establishment
(1) The occupier of a registered establishment must notify the Secretary, in writing, as soon as practicable after any of the following events occurs:
(a) there is a change in the occupier’s business structure;
(b) if the occupier is an individual—the individual enters into a personal insolvency agreement under Part X of the Bankruptcy Act 1966;
(c) if the occupier is a corporation—the corporation:
(i) enters into administration (within the meaning of section 435C of the Corporations Act 2001); or
(ia) begins restructuring (within the meaning of section 453A of that Act); or
(ii) is to be wound up (whether by a court or voluntarily);
(d) there is a change in the trading name, business address or contact details of the occupier;
(e) any other event prescribed by the rules.
Example: For the purposes of paragraph (a), each of the following would be a change in the occupier’s business structure:
(a) a change in a person who manages or controls export operations carried out at the establishment;
(b) if the occupier is a partnership—a change in the membership of the partnership.
Note: The Secretary may suspend or revoke the registration of an establishment if:
(a) the occupier of the establishment is not a fit and proper person (see paragraphs 127(1)(b) and 138(1)(b)); or
(b) the occupier fails to comply with this subsection (see paragraphs 127(1)(j) and 138(1)(j)).
Civil penalty provision
(2) A person is liable to a civil penalty if:
(a) the person is required to notify the Secretary of an event in accordance with subsection (1); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
147 Notice of person ceasing to be occupier of registered establishment
(1) If the person (the former occupier) in whose name an establishment is registered ceases:
(a) to operate the business that carries out export operations in relation to prescribed goods at the establishment; or
(b) to manage or control export operations carried out in relation to prescribed goods at the establishment;
the former occupier must, as soon as practicable after so ceasing, notify the Secretary, in writing, of that fact. The notice must also include contact details for the former occupier.
(2) The registration of the establishment is taken to have been revoked at the earlier of the following:
(a) the end of the day a notice under subsection (1) is received by the Secretary;
(b) the end of the seventh day after the day the former occupier ceased:
(i) to operate the business that carries out export operations in relation to prescribed goods at the establishment; or
(ii) to manage or control export operations carried out in relation to prescribed goods at the establishment.
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to notify the Secretary under subsection (1); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
Part 8—Other matters
148 Register of registered establishments
(1) The Secretary must keep a register of information about establishments that are registered under this Chapter.
(2) The register may be kept at a place and in a form that the Secretary determines, and may be kept by electronic means.
(3) The register must include the information in relation to a registered establishment prescribed by the rules.
Chapter 5—Approved arrangements
Part 1—Introduction
149 Simplified outline of this Chapter
The Secretary may, on application by a person, approve a proposed arrangement for a kind of export operations in relation to a kind of prescribed goods.
A proposed arrangement may relate to more than one kind of export operations in relation to more than one kind of prescribed goods for export to one or more places.
An approved arrangement is subject to certain conditions.
An approved arrangement may remain in force indefinitely or may cease to be in force on an expiry date.
If there is an expiry date for an approved arrangement, the approved arrangement may be renewed.
An approved arrangement or the conditions of the approved arrangement may be varied.
An approved arrangement, or a part of an approved arrangement, may be suspended. An approved arrangement may be revoked.
A show cause notice must be given to the holder of an approved arrangement before the approved arrangement may be varied, suspended or revoked (except in serious and urgent cases or if the holder has requested the variation, suspension or revocation).
The holder of an approved arrangement must comply with certain obligations.
Part 2—Approval of proposed arrangement
150 Application for approval of proposed arrangement
(1) A person may apply to the Secretary to approve a proposed arrangement for a kind of export operations in relation to a kind of prescribed goods.
(2) A proposed arrangement:
(a) must be recorded in writing in one or more documents; and
(b) may relate to more than one kind of export operations and more than one kind of prescribed goods; and
(c) may, but is not required to, specify one or more places to which goods covered by the arrangement are to be exported.
(3) An application may relate to more than one proposed arrangement.
Note 1: The export of a kind of prescribed goods may be prohibited unless export operations in relation to the goods are carried out in accordance with an approved arrangement covering the export operations and the goods (see section 29 and the rules made for the purposes of that section).
Note 2: Section 377 sets out requirements for applications.
151 Secretary must decide whether to approve proposed arrangement
(1) On receiving an application under section 150 to approve a proposed arrangement, the Secretary must decide:
(a) to approve the arrangement; or
(b) to refuse to approve the arrangement.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the application is to approve more than one proposed arrangement, the Secretary may decide to approve some or all of the proposed arrangements.
Note 3: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 4: A decision to refuse to approve a proposed arrangement is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(2) The Secretary may approve the proposed arrangement if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that the following requirements are met:
(a) if the applicant is a kind of person who is required by rules made for the purposes of section 373 to be a fit and proper person for the purposes of this Chapter—the applicant is a fit and proper person;
(b) either:
(i) all relevant Commonwealth liabilities of the applicant have been paid or are taken to have been paid; or
(ii) if one or more relevant Commonwealth liabilities of the applicant have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;
(c) carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the arrangement will ensure:
(i) compliance with the requirements of this Act in relation to those export operations and goods; and
(ii) that importing country requirements relating to those export operations and goods will be met;
(d) any other requirement prescribed by the rules.
Note: For the purposes of paragraph (b), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).
(3) If the Secretary approves the proposed arrangement, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the approved arrangement.
Note 1: If there is no expiry date for the approved arrangement, the approved arrangement remains in force unless it is revoked (see subsection 154(1)).
Note 2: A decision to set an expiry date for an approved arrangement is a reviewable decision (see Part 2 of Chapter 11).
(4) The Secretary may set an expiry date for the approved arrangement under subsection (3) even if rules made for the purposes of subsection 154(5) apply in relation to the approved arrangement.
152 Conditions of approved arrangement
(1) If the Secretary approves a proposed arrangement, the approved arrangement is subject to:
(a) the conditions provided by this Act; and
(b) the conditions prescribed by the rules (other than any of those conditions that the Secretary decides are not to be conditions of the approved arrangement); and
(c) any additional conditions that the Secretary considers appropriate and that are specified in the notice given to the applicant under section 153.
Note 1: The holder of an approved arrangement may commit an offence or be liable to a civil penalty if a condition of the approved arrangement is contravened (see section 184).
Note 2: An approved arrangement may be suspended or revoked if a condition of the approved arrangement is contravened (see paragraphs 171(1)(d) and 179(1)(d)).
Note 3: A decision to approve a proposed arrangement subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).
Note 4: Part 7 sets out additional obligations of the holder of an approved arrangement.
(2) Without limiting paragraph (1)(b), the rules may prescribe conditions in relation to any or all of the following:
(a) the holder of an approved arrangement;
(b) a kind of export operations;
(c) a kind of prescribed goods;
(d) importing country requirements relating to a kind of export operations or a kind of prescribed goods.
(3) Without limiting paragraph (1)(b) or (c), the rules may prescribe conditions, and the Secretary may impose conditions, that are required to be complied with before or after the export of the goods to which the conditions relate.
(4) For the purposes of this Act, conditions to which an approved arrangement is subject under subsection (1) or section 157 are conditions of the approved arrangement.
153 Notice of decision
If the Secretary approves a proposed arrangement, the Secretary must give the applicant a written notice stating the following information:
(a) the date the approved arrangement takes effect;
(b) that the approved arrangement remains in force indefinitely or the expiry date for the approved arrangement;
(c) any conditions prescribed by the rules that the Secretary has decided are not to be conditions of the approved arrangement;
(d) any additional conditions of the approved arrangement;
(e) any other information prescribed by the rules.
154 Period of effect of approved arrangement
Approved arrangements that have no expiry date
(1) If there is no expiry date for an approved arrangement, the approved arrangement remains in force unless:
(a) it is revoked under Part 6; or
(b) it is taken to have been revoked under section 188.
Approved arrangements that have an expiry date
(2) If there is an expiry date for an approved arrangement (including an approved arrangement that has been renewed under Part 3), the approved arrangement remains in force until the end of that expiry date unless:
(a) the approved arrangement is renewed under Part 3 on or before that date; or
(b) the approved arrangement is revoked under Part 6, or is taken to have been revoked under section 188, on or before that date.
(3) There is an expiry date for an approved arrangement if:
(a) rules made for the purposes of subsection (5) apply in relation to the approved arrangement; or
(b) an expiry date for the approved arrangement set under subsection 151(3) or 156(3) or paragraph 165(1)(c) or (d) is in force in relation to the approved arrangement.
(4) The expiry date for an approved arrangement is:
(a) if rules made for the purposes of subsection (5) apply in relation to the approved arrangement and no expiry date set under subsection 151(3) or 156(3) or paragraph 165(1)(c) or (d) is in force in relation to the approved arrangement—the last day of the period prescribed by the rules; or
(b) if an expiry date for the approved arrangement set under subsection 151(3) or 156(3) or paragraph 165(1)(c) or (d) is in force in relation to the approved arrangement—that date.
Rules may prescribe period of effect of approved arrangement
(5) The rules may prescribe the period during which an approved arrangement remains in force. The rules may apply in relation to:
(a) approved arrangements generally; or
(b) approved arrangements for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a place to which the goods may be exported.
Part 3—Renewal of approved arrangement
155 Application to renew approved arrangement
(1) This section applies in relation to an approved arrangement (including an approved arrangement that is suspended, or a part of which is suspended, under Part 5) if there is an expiry date for the approved arrangement.
Note: See subsections 154(3) and (4) in relation to the expiry date for an approved arrangement.
(2) The holder of the approved arrangement may apply to the Secretary to renew the approved arrangement.
Note: Section 377 sets out requirements for applications.
(3) An application for renewal may relate to more than one approved arrangement.
(4) An application for renewal must be made:
(a) within the period prescribed by the rules; or
(b) if the Secretary allows a longer period—within that longer period.
(5) If an application to renew an arrangement is made after the period applying under subsection (4):
(a) the application is taken to be an application to approve the arrangement; and
(b) Part 2 applies in relation to the application; and
(c) the other provisions of this Part do not apply in relation to the application.
156 Secretary must decide whether to renew approved arrangement
(1) On receiving an application under section 155 to renew an approved arrangement, the Secretary must decide:
(a) to renew the approved arrangement; or
(b) to refuse to renew the approved arrangement.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the application is to renew more than one approved arrangement, the Secretary may decide to renew some or all of the approved arrangements.
Note 3: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 4: A decision to refuse to renew an approved arrangement is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(2) The Secretary may refuse to renew the approved arrangement if the Secretary is not satisfied, having regard to any matter that the Secretary considers relevant, of one or more of the following:
(a) if the holder of the approved arrangement is a kind of person who is required by rules made for the purposes of section 373 to be a fit and proper person for the purposes of this Chapter—the holder is a fit and proper person;
(b) either:
(i) all relevant Commonwealth liabilities of the holder have been paid or are taken to have been paid; or
(ii) if one or more relevant Commonwealth liabilities of the holder have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;
(c) the holder of the approved arrangement has complied with the requirements of this Act in relation to the export operations and goods covered by the approved arrangement;
(d) the conditions of the approved arrangement have been, and are being, complied with;
(e) carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement will ensure:
(i) compliance with the requirements of this Act in relation to those export operations and goods; and
(ii) that importing country requirements relating to those export operations and goods will be met;
(f) any other requirement prescribed by the rules is met.
Note: For the purposes of paragraph (b), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).
(3) If the Secretary renews an approved arrangement, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the approved arrangement.
Note 1: If there is no expiry date for the approved arrangement, the approved arrangement remains in force unless it is revoked (see subsection 154(1)).
Note 2: A decision to set an expiry date for a renewed approved arrangement is a reviewable decision (see Part 2 of Chapter 11).
(4) The Secretary may set an expiry date for the approved arrangement under subsection (3) even if rules made for the purposes of subsection 154(5) apply in relation to the approved arrangement.
157 Conditions of renewed approved arrangement
(1) If the Secretary renews an approved arrangement, the approved arrangement is subject to:
(a) the conditions provided by this Act; and
(b) the conditions prescribed by rules made for the purposes of paragraph 152(1)(b) (other than any of those conditions that the Secretary decides are not to be conditions of the approved arrangement); and
(c) any additional conditions that the Secretary considers appropriate and that are specified in the notice given under section 158.
Note 1: The holder of an approved arrangement may commit an offence or be liable to a civil penalty if a condition of the approved arrangement is contravened (see section 184).
Note 2: An approved arrangement may be suspended or revoked if a condition of the approved arrangement is contravened (see paragraphs 171(1)(d) and 179(1)(d)).
Note 3: A decision to renew an approved arrangement subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).
Note 4: Part 7 sets out additional obligations of the holder of an approved arrangement.
(2) Without limiting paragraph (1)(c), the Secretary may impose conditions that are required to be complied with before or after the export of the goods to which the conditions relate.
158 Notice of decision
If an approved arrangement is renewed, the Secretary must give the holder of the approved arrangement a written notice stating the information referred to in section 153.
Part 4—Variation of approved arrangement
Division 1—Variations by holder
Subdivision A—Non‑significant variations
159 Holder may make non‑significant variations of approved arrangement
(1) The holder of an approved arrangement may implement a variation, or 2 or more variations, of the approved arrangement if:
(a) the variation is, or the variations are, not an alternative regulatory arrangement within the meaning of subsection 379B(1); and
(b) the holder and the Secretary consider that the variation, or the combined effect of the variations, is not significant (having regard to the matters referred to in section 164).
(2) If the holder of an approved arrangement implements one or more variations of the approved arrangement under subsection (1), the holder must, as soon as practicable after doing so, make a written record of each variation (by varying the text of the approved arrangement or creating a separate document) and the reasons for the variation.
Note: The Secretary may suspend or revoke the approved arrangement if the holder contravenes this subsection (see paragraphs 171(1)(k) and 179(1)(k)).
(3) If:
(a) the holder of an approved arrangement implements a variation of the approved arrangement under subsection (1); and
(b) the holder makes a written record of the variation as required by subsection (2);
then, despite any other provision of this Act, a person does not commit an offence, and is not liable to a civil penalty, only because the variation was implemented before the written record was made.
Civil penalty provision
(4) The holder of an approved arrangement is liable to a civil penalty if the holder contravenes subsection (2).
Civil penalty: 60 penalty units.
160 Date of effect of varied approved arrangement
If:
(a) the holder of an approved arrangement implements a variation of the approved arrangement under subsection 159(1); and
(b) the holder makes a written record of the variation as required by subsection 159(2);
the approved arrangement is taken to have been varied on the date the record of the variation was made under subsection 159(2).
Note: The approved arrangement, as varied, remains in force as provided by section 154.
Subdivision B—Significant variations and variation of conditions
161 Application by holder for approval of approved alternative regulatory arrangement or other significant variation or to vary conditions
(1) The holder of an approved arrangement may apply to the Secretary:
(a) to approve a variation of the approved arrangement to implement an alternative regulatory arrangement approved under paragraph 379C(1)(a); or
(b) to approve any other variation, or variations, of the approved arrangement if the holder and the Secretary consider that the variation, or the combined effect of the variations, is significant (having regard to the matters referred to in section 164); or
(c) to vary the conditions of the approved arrangement.
Note: Section 377 sets out requirements for applications. A single application may be made to approve a variation of an approved arrangement and to renew the approved arrangement.
(2) If the Secretary receives an application under subsection (1) to approve a variation, or vary conditions, the Secretary must decide:
(a) to approve the variation or vary the conditions; or
(ab) to approve the variation, or vary the conditions, with additional conditions or variations of conditions; or
(b) to refuse to approve the variation or vary the conditions.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 3: A decision to approve the application with additional conditions or variations of conditions, or to refuse the application, is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the holder written notice of the decision (see section 382).
Approval with additional conditions or variations of conditions
(2A) The Secretary may make a decision under paragraph (2)(ab) only if the Secretary reasonably believes that the additional conditions or variations of conditions are necessary:
(a) to ensure the integrity of a kind of prescribed goods covered by the approved arrangement; or
(b) to ensure that export operations covered by the approved arrangement will be carried out in accordance with the approved arrangement; or
(c) to ensure compliance with a condition of the approved arrangement; or
(d) to address circumstances relating to a kind of export operations carried out in relation to a kind of prescribed goods covered by the approved arrangement that have changed or will change; or
(e) to ensure:
(i) compliance with the requirements of this Act in relation to the export operations and goods covered by the approved arrangement; or
(ii) that importing country requirements relating to the export operations and goods covered by the approved arrangement are, or will be, met; or
(f) to correct a minor or technical error; or
(g) for any other reason prescribed by the rules.
(2B) The Secretary must not make a decision under paragraph (2)(ab) unless the Secretary has given a written notice to the holder of the approved arrangement in accordance with subsection (2C).
(2C) The written notice must:
(a) specify each proposed additional condition or variation of a condition; and
(b) specify the grounds for each proposed additional condition or variation of a condition; and
(c) request the holder of the approved arrangement to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed additional conditions or variations of conditions should not be made; and
(d) include a statement setting out the holder’s right to seek review of a decision made under paragraph (2)(ab).
Refusal
(3) The Secretary may refuse to approve the variation, or vary the conditions, if the Secretary is not satisfied, having regard to any matter that the Secretary considers relevant, of one or more of the following:
(a) either:
(i) all relevant Commonwealth liabilities of the holder of the approved arrangement have been paid or are taken to have been paid; or
(ii) if one or more relevant Commonwealth liabilities of the holder have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;
(b) carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement as proposed to be varied will ensure:
(i) compliance with the requirements of this Act in relation to those export operations and goods; and
(ii) that importing country requirements relating to those export operations and goods will be met; and
(iii) the integrity of the goods;
(c) any other requirement prescribed by the rules is met.
Note 1: For the purposes of paragraph (3)(a), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).
Note 2: The holder of the approved arrangement may commit an offence or be liable to a civil penalty if:
(a) a variation of the approved arrangement, or of the conditions of the approved arrangement, referred to in subsection (1) is implemented; and
(b) the variation has not been approved, or the holder has not been given notice of the approval (see section 163).
162 Notice of variation
Approval
(1) If the Secretary approves a variation of an approved arrangement or varies the conditions of an approved arrangement under paragraph 161(2)(a), the Secretary must give the holder of the approved arrangement written notice of the approval or variation.
(2) The notice must state the following:
(a) details of the variation that has been approved;
(b) if the variation is of the conditions of the approved arrangement—the varied conditions;
(c) the date the variation takes effect;
(d) any other information prescribed by the rules.
Note: The approved arrangement, as varied, remains in force as provided by section 154.
Approval with additional conditions or variations of conditions
(3) If the Secretary approves a variation of an approved arrangement, or varies the conditions of an approved arrangement, with additional conditions or variations of conditions under paragraph 161(2)(ab), the Secretary must give the holder of the approved arrangement written notice of the approval or variation.
(4) The notice must state the following:
(a) if the Secretary approved a variation of the approved arrangement—the details of the variation;
(b) if the Secretary varied the conditions of the approved arrangement as requested in the application under subsection 161(1)—the varied conditions;
(c) the additional conditions or variations of conditions;
(d) the date the variation, varied conditions or additional conditions take effect, which must not be before the earlier of the following:
(i) the day after any response requested in the written notice (the show cause notice) given to the holder under subsection 161(2B) is received by the Secretary;
(ii) the end of 14 days after the show cause notice was given;
(e) any other information prescribed by the rules.
Note: The approved arrangement, as varied, remains in force as provided by section 154.
163 Varied approved arrangement must not be implemented unless variation approved etc.
(1) The holder of an approved arrangement contravenes this subsection if:
(a) a variation of the approved arrangement, or of the conditions of the approved arrangement, referred to in subsection 161(1) is implemented; and
(b) either:
(i) the variation has not been approved under paragraph 161(2)(a) or 161(2)(ab); or
(ii) the variation has been approved under paragraph 161(2)(a) or 161(2)(ab) but the Secretary has not given the holder notice of the approval under section 162.
Note 1: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Note 2: The Secretary may suspend or revoke the approved arrangement if the holder contravenes this subsection (see paragraphs 171(1)(k) and 179(1)(k)).
Fault‑based offence
(2) The holder of an approved arrangement commits an offence if the holder contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) The holder of an approved arrangement is liable to a civil penalty if the holder contravenes subsection (1).
Civil penalty: 240 penalty units.
Subdivision C—Matters relating to whether proposed variation of approved arrangement is significant
164 Matters to which regard must be had in considering whether proposed variation of approved arrangement is significant
(1) This section has effect for the purposes of paragraphs 159(1)(b) and 161(1)(b).
(2) The matters to which the holder of an approved arrangement and the Secretary must have regard in considering whether a variation, or the combined effect of 2 or more variations, of the approved arrangement is significant are as follows:
(a) whether the variation, or the variations, may have the effect that carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement will no longer ensure:
(i) compliance with the requirements of this Act in relation to those export operations and goods; or
(ii) that importing country requirements relating to those export operations and goods will be met;
(b) whether the variation, or the variations, may adversely affect the Secretary’s ability to accurately assess:
(i) whether carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement will ensure the matters referred to in subparagraphs (a)(i) and (ii); or
(ii) whether the integrity of a kind of prescribed goods covered by the approved arrangement can be ensured;
(c) whether the variation or any of the variations:
(i) is of a kind of export operations or a kind of prescribed goods covered by the approved arrangement; or
(ii) is of a kind prescribed by the rules.
Division 2—Variation required or made by Secretary
165 Secretary may require approved arrangement to be varied or make certain variations of approved arrangement
(1) The Secretary may do any of the following in relation to an approved arrangement:
(a) require the holder of the approved arrangement to vary any aspect of the approved arrangement, including so that it does not cover:
(i) a kind of export operations; or
(ii) a kind of prescribed goods; or
(iii) if applicable, a place to which goods may be exported;
(b) vary the conditions of the approved arrangement (including by imposing new conditions);
(c) if there is no expiry date for the approved arrangement—vary the approved arrangement by setting an expiry date for the approved arrangement;
(d) if there is an expiry date for the approved arrangement (whether under paragraph 154(4)(a) or (b))—vary the approved arrangement by setting a different expiry date for the approved arrangement;
(e) if there is an expiry date for the approved arrangement under paragraph 154(4)(b)—vary the approved arrangement by revoking that expiry date.
Note 1: If the Secretary revokes the expiry date for the approved arrangement under paragraph (e), the approved arrangement will remain in force:
(a) if rules made for the purposes of subsection 154(5) apply in relation to the approved arrangement—for the period prescribed by the rules; or
(b) if there are no such rules—indefinitely (unless it is revoked).
Note 2: Certain decisions under subsection (1) are reviewable decisions (see Part 2 of Chapter 11).
(2) The Secretary may require the holder of the approved arrangement to vary the approved arrangement under paragraph (1)(a), or make a variation in relation to the approved arrangement under paragraph (1)(b) or (c), or set an earlier expiry date for the approved arrangement under paragraph (1)(d), only if the Secretary reasonably believes that:
(a) the integrity of a kind of prescribed goods covered by the approved arrangement cannot be ensured; or
(b) if the holder is a kind of person who is required by rules made for the purposes of section 373 to be a fit and proper person for the purposes of this Chapter—the holder is not a fit and proper person; or
(c) export operations covered by the approved arrangement have not been, or are not being, carried out in accordance with the approved arrangement, or a condition of the approved arrangement has been, or is being, contravened; or
(d) circumstances relating to a kind of export operations carried out in relation to a kind of prescribed goods covered by the approved arrangement have changed; or
(e) it is necessary to do so to ensure:
(i) compliance with the requirements of this Act in relation to the export operations and goods covered by the approved arrangement; or
(ii) that importing country requirements relating to the export operations and goods covered by the approved arrangement are met; or
(f) an importing country requirement relating to a kind of prescribed goods covered by the approved arrangement has changed; or
(g) it is necessary to do so:
(i) to take account of an event notified under section 186; or
(ii) to correct a minor or technical error; or
(h) the approved arrangement needs to be varied for any other reason prescribed by the rules.
Notice of certain proposed variations
(3) The Secretary must not require the holder to vary the approved arrangement under paragraph (1)(a), or make a variation in relation to the approved arrangement under paragraph (1)(b) or (c), or set an earlier expiry date for the approved arrangement under paragraph (1)(d), unless the Secretary has given a written notice to the holder of the approved arrangement in accordance with subsection (4).
(4) A notice under subsection (3) must:
(a) specify each proposed variation; and
(b) specify the grounds for each proposed variation; and
(c) subject to subsection (5), request the holder of the approved arrangement to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed variation should not be made; and
(d) include a statement setting out the holder’s right to seek review of a decision to make the proposed variation.
(5) A notice under subsection (3) is not required to include the request referred to in paragraph (4)(c) if the Secretary reasonably believes that the grounds for the proposed variation are serious and urgent.
166 Variations required by the Secretary
(1) If, under paragraph 165(1)(a), the Secretary requires the holder of an approved arrangement to vary the approved arrangement, the Secretary must give the holder a written notice (a variation notice) requiring the holder:
(a) to vary the approved arrangement as specified in the variation notice; and
(b) to give the varied approved arrangement to the Secretary, or otherwise make the varied approved arrangement available to the Secretary for evaluation, by the date specified in the variation notice.
Note: If the holder does not comply with the variation notice, the Secretary may suspend or revoke the approved arrangement (see paragraphs 171(1)(k) and 179(1)(k)).
(2) If the holder complies with the variation notice, the holder is taken to have applied to the Secretary to approve the varied approved arrangement.
Secretary must decide whether to approve varied approved arrangement
(3) If the varied approved arrangement is given to the Secretary, or otherwise made available to the Secretary, as required by the variation notice, the Secretary must decide:
(a) to approve the varied approved arrangement; or
(b) to refuse to approve the varied approved arrangement.
(4) The Secretary may approve the varied approved arrangement if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that all the variations specified in the variation notice have been made.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 3: A decision to refuse to approve a varied approved arrangement is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the holder of the approved arrangement written notice of the decision (see section 382).
(5) The Secretary may approve the varied approved arrangement subject to any conditions the Secretary considers appropriate.
Note: A decision to approve a varied approved arrangement subject to conditions is a reviewable decision (see Part 2 of Chapter 11).
Notice of approval of varied approved arrangement
(6) If the Secretary approves the varied approved arrangement, the Secretary must give the holder of the varied approved arrangement a written notice stating:
(a) the date the varied approved arrangement takes effect; and
(b) any other information prescribed by the rules.
Note: The varied approved arrangement remains in force as provided by section 154.
When varied approved arrangement takes effect
(7) If the holder of the approved arrangement was given a notice (a show cause notice) under subsection 165(3) that included the request referred to in paragraph 165(4)(c), the varied approved arrangement must not take effect before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
Note: The varied approved arrangement remains in force as provided by section 154.
167 Varied approved arrangement must not be implemented unless approved etc.
If the holder of an approved arrangement has been given a variation notice in relation to the approved arrangement under subsection 166(1), the holder must not implement a variation specified in the variation notice unless:
(a) the varied approved arrangement has been approved under paragraph 166(3)(a); and
(b) the Secretary has given the holder written notice of the approval under subsection 166(6).
Note: If the holder contravenes this section, the Secretary may:
(a) suspend or revoke the approved arrangement (see paragraphs 171(1)(k) and 179(1)(k)); or
(b) refuse to issue a government certificate in relation to a kind of goods covered by the approved arrangement (see section 67) or refuse to issue an export permit for the goods (see section 225).
168 Notice of variations made by the Secretary
(1) If the Secretary makes a variation in relation to an approved arrangement under paragraph 165(1)(b), (c), (d) or (e), the Secretary must give the holder of the approved arrangement written notice of the variation.
(2) The notice must state the following:
(a) if the variation is of the conditions of the approved arrangement—the varied conditions and any new conditions;
(b) if the variation affects the period of effect of the approved arrangement:
(i) the expiry date for the approved arrangement under paragraph 154(4)(a) or (b) (whichever applies); or
(ii) if there is no expiry date for the approved arrangement—that the approved arrangement remains in force unless it is revoked;
(c) the date the variation takes effect;
(d) any other information prescribed by the rules.
(3) If the holder of the approved arrangement was given a notice (a show cause notice) under subsection 165(3) that included the request referred to in paragraph 165(4)(c), the variation must not take effect before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
Note: The varied approved arrangement remains in force as provided by section 154.
Part 5—Suspension of approved arrangement
Division 1—Suspension requested by holder
169 Holder may request suspension
(1) Subject to subsection (2), the holder of an approved arrangement may request the Secretary to suspend the approved arrangement or a part of the approved arrangement.
Note: A request might be made under this subsection if, for example, the holder of the approved arrangement does not have personnel with appropriate qualifications or expertise to carry out a particular kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement.
(2) A request may be made under subsection (1) only in the circumstances prescribed by the rules.
(3) A request under subsection (1) may relate to more than one kind of export operations or more than one kind of prescribed goods and, if applicable, more than one place to which goods may be exported.
(4) A request under subsection (1) must:
(a) be in writing; and
(b) specify whether the whole or a specified part of the approved arrangement is to be suspended; and
(c) state each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the approved arrangement is to be suspended; and
(d) specify the reason for the suspension; and
(e) include any other information prescribed by the rules.
(5) If the Secretary receives a request from the holder of an approved arrangement under subsection (1) to suspend the whole or a part of the approved arrangement, the Secretary must, by written notice to the holder, suspend the approved arrangement, or the part of the approved arrangement, as requested, with effect on the day specified in the notice.
170 Request to revoke suspension
(1) If an approved arrangement, or a part of an approved arrangement, is suspended under section 169, the holder of the approved arrangement may request the Secretary to revoke the suspension.
(2) A request under subsection (1) must:
(a) be in writing; and
(b) state the reason for the request; and
(c) include any other information prescribed by the rules.
(3) If the Secretary receives a request under subsection (1) from the holder of an approved arrangement, the Secretary may:
(a) if the Secretary is satisfied that the reason for the suspension no longer exists and there is no reason why the suspension should not be revoked—revoke the suspension by written notice to the holder; or
(b) in any other case:
(i) suspend the approved arrangement, or a part of the approved arrangement, under Division 2 of this Part; or
(ii) revoke the approved arrangement under Division 2 of Part 6.
Note: A decision to suspend the approved arrangement, or a part of the approved arrangement, or to revoke the approved arrangement is a reviewable decision (see Part 2 of Chapter 11).
Division 2—Suspension by Secretary
171 Grounds for suspension—general
(1) The Secretary may suspend an approved arrangement, or a part of an approved arrangement, if the Secretary reasonably believes any of the following:
(a) the integrity of a kind of prescribed goods covered by the approved arrangement cannot be ensured;
(b) if the holder of the approved arrangement is a kind of person who is required by rules made for the purposes of section 373 to be a fit and proper person for the purposes of this Chapter—the holder is not a fit and proper person;
(c) a requirement referred to in subsection 151(2) is no longer met;
(d) export operations covered by the approved arrangement have not been, or are not being, carried out in accordance with the approved arrangement, or a condition of the approved arrangement has been, or is being, contravened;
(e) circumstances relating to any of the export operations or goods covered by the approved arrangement have changed;
(f) carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement will no longer ensure:
(i) compliance with the requirements of this Act in relation to those export operations and goods; or
(ii) that importing country requirements relating to those export operations and goods are met;
(g) export operations have not been carried out for a continuous period of 12 months or more in relation to some or all of the goods covered by the approved arrangement;
(h) the holder of the approved arrangement:
(i) failed to comply with a direction given to the holder by an authorised officer or the Secretary; or
(ii) failed to comply with a request by an authorised officer to provide information or a document; or
(iii) failed to provide facilities and assistance to an auditor as required by section 271; or
(iv) failed to comply with a request made by an auditor under section 272;
(i) the holder of the approved arrangement has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under this Act; or
(ii) hindered or prevented a person from performing functions or exercising powers under this Act;
(j) the holder of the approved arrangement, or a person who manages or controls or carries out export operations covered by the approved arrangement:
(i) made a false, misleading or incomplete statement in an application under this Chapter; or
(ii) gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under this Act; or
(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;
(k) the holder of the approved arrangement has contravened a requirement of this Act in relation to the approved arrangement;
(l) a ground prescribed by the rules exists.
Note 1: A suspension must not be for more than 12 months (see section 174).
Note 2: A decision to suspend an approved arrangement, or a part of an approved arrangement, under this section is a reviewable decision (see Part 2 of Chapter 11).
Notice of proposed suspension
(2) The Secretary must not suspend an approved arrangement, or a part of an approved arrangement, under subsection (1) unless the Secretary has given a written notice to the holder of the approved arrangement in accordance with subsection (3).
(3) A notice under subsection (2) must:
(a) specify whether the whole of the approved arrangement is proposed to be suspended, or whether a part of the approved arrangement is proposed to be suspended and, if so, which part; and
(b) specify the grounds for the proposed suspension; and
(c) subject to subsection (4), request the holder of the approved arrangement to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the approved arrangement, or the part of the approved arrangement, should not be suspended as proposed; and
(d) include a statement setting out the holder’s right to seek review of a decision to suspend the approved arrangement, or the part of the approved arrangement, as proposed.
(4) A notice under subsection (2) is not required to include the request referred to in paragraph (3)(c) if the Secretary reasonably believes that the grounds for the suspension are serious and urgent.
172 Grounds for suspension—overdue relevant Commonwealth liability
Notice of proposed suspension
(1) The Secretary may suspend an approved arrangement for a period if:
(a) a relevant Commonwealth liability of the holder of the approved arrangement (the debtor) is more than 30 days overdue; and
(b) the Secretary has given a written notice to the debtor in accordance with subsection (2); and
(c) within 8 days after the notice is given:
(i) the relevant Commonwealth liability has not been paid; or
(ii) the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.
Note 1: A suspension must not be for more than 12 months (see section 174).
Note 2: A decision to suspend an approved arrangement under this section is a reviewable decision (see Part 2 of Chapter 11).
Note 3: If the Secretary suspends an approved arrangement under this section, the Secretary may revoke the approved arrangement in certain circumstances (see section 180).
(2) A notice under subsection (1) must:
(a) state that a relevant Commonwealth liability of the debtor is more than 30 days overdue; and
(b) state that the Secretary may suspend the debtor’s approved arrangement if, within 8 days after the notice is given:
(i) the relevant Commonwealth liability is not paid; or
(ii) the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability; and
(c) include a statement setting out the debtor’s right to seek review of a decision to suspend the approved arrangement.
Secretary may direct that activities not be carried out
(3) If the Secretary suspends the debtor’s approved arrangement under subsection (1), the Secretary may refuse to carry out, or direct a person not to carry out, specified activities or kinds of activities in relation to the debtor under this Act until the relevant Commonwealth liability has been paid.
Note: See also section 309 (general provisions relating to directions).
Action under this section does not affect liability to pay relevant Commonwealth liability
(4) Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.
173 Notice of suspension
(1) If the Secretary decides to suspend an approved arrangement, or a part of an approved arrangement, under this Division, the Secretary must give the holder of the approved arrangement a written notice stating the following:
(a) that the approved arrangement, or the part of the approved arrangement, is to be suspended;
(b) the reasons for the suspension;
(c) the date the suspension is to start;
(d) the period of the suspension.
Note: The notice must also state the matters referred to in section 382.
(2) If the holder of the approved arrangement was given a notice (a show cause notice) under subsection 171(2) that included the request referred to in paragraph 171(3)(c), the suspension must not start before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
174 Period of suspension
(1) A suspension of an approved arrangement, or a part of an approved arrangement, under this Division must not be for more than 12 months.
(2) The Secretary may vary the period of a suspension under this Division by written notice to the holder of the approved arrangement. However, the total period of the suspension must not be more than 12 months.
Note: A decision to extend the period of a suspension is a reviewable decision (see Part 2 of Chapter 11).
175 Revocation of suspension
The Secretary may revoke a suspension of an approved arrangement, or a part of an approved arrangement, under this Division by written notice to the holder of the approved arrangement.
Division 3—Other provisions
176 Effect of suspension
(1) If an approved arrangement, or a part of an approved arrangement, is suspended under Division 1 or 2:
(a) the approved arrangement remains in force while it is suspended; and
(b) subject to rules made for the purposes of subsection (2), the requirements of this Act in relation to the approved arrangement (including the conditions of the approved arrangement) must be complied with while the approved arrangement, or the part of the approved arrangement, is suspended.
(2) The rules may prescribe requirements of this Act (including conditions of an approved arrangement) that are not required to be complied with during any period when the approved arrangement, or a part of the approved arrangement, is suspended.
177 Export operations must not be carried out while approved arrangement suspended
(1) The holder of an approved arrangement contravenes this subsection if:
(a) the holder was given a notice of suspension of the whole or a part of the approved arrangement under subsection 169(5) or 173(1); and
(b) export operations in relation to which the approved arrangement was suspended were carried out under the approved arrangement while it was suspended.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) The holder of an approved arrangement commits an offence if the holder contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) The holder of an approved arrangement is liable to a civil penalty if the holder contravenes subsection (1).
Civil penalty: 240 penalty units.
Part 6—Revocation of approved arrangement
Division 1—Revocation requested by holder
178 Holder may request revocation
(1) The holder of an approved arrangement (including an approved arrangement that is suspended, or a part of which is suspended, under Part 5) may request the Secretary to revoke the approved arrangement.
Note: If the holder does not wish to revoke the approved arrangement for all purposes, the holder may apply to vary the approved arrangement under Subdivision B of Division 1 of Part 4.
(2) A request under subsection (1) must:
(a) be in writing; and
(b) include the information (if any) prescribed by the rules.
(3) If the Secretary receives a request under subsection (1) to revoke an approved arrangement, the Secretary must, by written notice to the holder of the approved arrangement, revoke the approved arrangement with effect on the day specified in the notice.
(4) Subsection (3) does not apply if, before the request under subsection (1) was made, the Secretary:
(a) had given the holder of the approved arrangement a notice under subsection 179(2) in relation to the approved arrangement; and
(b) had not decided whether to revoke the approved arrangement or not.
Division 2—Revocation by Secretary
179 Grounds for revocation—general
(1) The Secretary may revoke an approved arrangement (including an approved arrangement that is suspended, or a part of which is suspended, under Part 5) if the Secretary reasonably believes any of the following:
(a) the integrity of a kind of prescribed goods covered by the approved arrangement cannot be ensured;
(b) if the holder of the approved arrangement is a kind of person who is required by rules made for the purposes of section 373 to be a fit and proper person for the purposes of this Chapter—the holder is not a fit and proper person;
(c) a requirement referred to in subsection 151(2) is no longer met;
(d) export operations covered by the approved arrangement have not been, or are not being, carried out in accordance with the approved arrangement, or a condition of the approved arrangement has been, or is being, contravened;
(e) circumstances relating to any of the export operations or goods covered by the approved arrangement have changed;
(f) carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement will no longer ensure:
(i) compliance with the requirements of this Act in relation to those export operations and goods; or
(ii) that importing country requirements relating to those export operations and goods are met;
(g) export operations have not been carried out for a continuous period of 12 months or more in relation to some or all of the prescribed goods covered by the approved arrangement;
(h) the holder of the approved arrangement:
(i) failed to comply with a direction given to the holder by an authorised officer or the Secretary; or
(ii) failed to comply with a request by an authorised officer to provide information or a document; or
(iii) failed to provide facilities and assistance to an auditor as required by section 271; or
(iv) failed to comply with a request made by an auditor under section 272;
(i) the holder of the approved arrangement has engaged in conduct that:
(i) intimidated a person performing functions or exercising powers under this Act;
(ii) hindered or prevented a person from performing functions or exercising powers under this Act;
(j) the holder of the approved arrangement, or a person who manages or controls or carries out export operations covered by the approved arrangement:
(i) made a false, misleading or incomplete statement in an application under this Chapter; or
(ii) gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under this Act; or
(iii) gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;
(k) the holder of the approved arrangement has contravened a requirement of this Act in relation to the approved arrangement;
(l) a ground prescribed by the rules exists.
Note: A decision to revoke an approved arrangement under this section is a reviewable decision (see Part 2 of Chapter 11).
Notice of proposed revocation
(2) The Secretary must not revoke an approved arrangement under subsection (1) unless the Secretary has given a written notice to the holder of the approved arrangement in accordance with subsection (3).
(3) A notice under subsection (2) must:
(a) specify the grounds for the proposed revocation; and
(b) subject to subsection (4), request the holder of the approved arrangement to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the approved arrangement should not be revoked; and
(c) include a statement setting out the holder’s right to seek review of a decision to revoke the approved arrangement.
(4) A notice under subsection (2) is not required to include the request referred to in paragraph (3)(b) if the Secretary reasonably believes that the grounds for the revocation are serious and urgent.
180 Grounds for revocation—overdue relevant Commonwealth liability
(1) The Secretary may revoke an approved arrangement if:
(a) the approved arrangement is suspended under subsection 172(1) for non‑payment of a relevant Commonwealth liability; and
(b) within 90 days after the start of the suspension:
(i) the relevant Commonwealth liability had not been paid; or
(ii) the person (the debtor) who is liable to pay the relevant Commonwealth liability had not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.
Note: A decision to revoke an approved arrangement under this section is a reviewable decision (see Part 2 of Chapter 11).
Secretary may direct that activities not be carried out
(2) If the Secretary revokes an approved arrangement under subsection (1), the Secretary may refuse to carry out, or direct a person not to carry out, specified activities or kinds of activities in relation to the debtor under this Act until the relevant Commonwealth liability has been paid.
Note: See also section 309 (general provisions relating to directions).
Action under this section does not affect liability to pay relevant Commonwealth liability
(3) Action by the Secretary under this section does not affect the liability of the debtor to pay the relevant Commonwealth liability.
181 Notice of revocation
(1) If the Secretary decides to revoke an approved arrangement under this Division, the Secretary must give the holder of the approved arrangement a written notice stating the following:
(a) that the approved arrangement is to be revoked;
(b) the reasons for the revocation;
(c) the date the revocation is to take effect.
Note: The notice must also state the matters referred to in section 382.
(2) If the holder of the approved arrangement was given a notice (a show cause notice) under subsection 179(2) that included the request referred to in paragraph 179(3)(b), the revocation must not take effect before the earlier of the following:
(a) the day after any response to the request is received by the Secretary;
(b) the end of 14 days after the show cause notice was given.
Division 3—Other provisions
182 Export operations must not be carried out after approved arrangement revoked
(1) A person contravenes this subsection if:
(a) the person was the holder of an approved arrangement; and
(b) the person was given notice of revocation of the approved arrangement under subsection 178(3) or 181(1); and
(c) export operations that were covered by the approved arrangement were carried out after the revocation took effect.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 240 penalty units.
183 Secretary may require action to be taken after approved arrangement revoked
(1) This section applies if:
(a) a person was given notice of revocation of an approved arrangement under subsection 178(3) or 181(1); or
(b) the approved arrangement was revoked under Division 1 or 2.
(2) The Secretary may, in writing, direct the person to take specified action, within a specified period after the approved arrangement is revoked, in relation to the export operations and goods that were covered by the approved arrangement. The action must be action that is necessary for the purpose of achieving one or more objects of this Act.
(3) A direction to a person under subsection (2) must state that, if the person fails to comply with the direction, the person could commit an offence or be liable to a civil penalty.
Note: See also section 309 (general provisions relating to directions).
(4) A person who is given a direction under subsection (2) must comply with the direction.
Fault‑based offence
(5) A person commits an offence if:
(a) the person is given a direction under subsection (2); and
(b) the person engages in conduct; and
(c) the conduct contravenes the direction.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Civil penalty provision
(6) A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 240 penalty units.
Part 7—Obligations of holders of approved arrangements
184 Conditions of approved arrangement must not be contravened
Approved arrangement that is not suspended
(1) A person contravenes this subsection if:
(a) the person is the holder of an approved arrangement; and
(b) the approved arrangement, or a part of the approved arrangement, is not suspended under Part 5; and
(c) a condition of the approved arrangement is contravened.
Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(c).
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 960 penalty units.
Approved arrangement that is suspended
(5) A person contravenes this subsection if:
(a) the person is the holder of an approved arrangement; and
(b) the approved arrangement, or a part of the approved arrangement, is suspended under Part 5; and
(c) a condition of the approved arrangement is contravened; and
(d) the condition is required to be complied with during the period of the suspension.
Note: The physical elements of an offence against subsection (6) are set out in this subsection (see section 370).
Fault‑based offence
(6) A person commits an offence if the person contravenes subsection (5).
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
(7) For the purposes of subsection (6), strict liability applies to paragraphs (5)(c) and (d).
Civil penalty provision
(8) A person is liable to a civil penalty if the person contravenes subsection (5).
Civil penalty: 960 penalty units.
185 Additional or corrected information in relation to application to approve proposed arrangement etc.
(1) The holder of an approved arrangement must comply with subsection (2) if:
(a) the holder becomes aware that information included in an application made by the holder under this Chapter, or information or a document given to the Secretary in relation to such an application, was incomplete or incorrect; or
(b) a change prescribed by the rules occurs.
(2) The holder of the approved arrangement must, as soon as practicable, give the Secretary additional or corrected information, to the extent that it is relevant to assessing whether:
(a) the requirements of this Act in relation to a matter covered by the approved arrangement have been, are being, or will be complied with; or
(b) importing country requirements relating to a matter covered by the approved arrangement have been, are being, or will be met.
Note 1: A person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of this Act).
Note 2: The Secretary may suspend or revoke the approved arrangement if the holder fails to comply with this subsection (see paragraphs 171(1)(k) and 179(1)(k)).
Note 3: This section is not subject to the privilege against self‑incrimination (see section 426).
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to give information to the Secretary under subsection (2); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
186 Notice of changes to holder of approved arrangement
(1) The holder of an approved arrangement must notify the Secretary, in writing, as soon as practicable after any of the following events occurs:
(a) there is a change in the holder’s business structure;
(b) if the holder is an individual—the individual enters into a personal insolvency agreement under Part X of the Bankruptcy Act 1966;
(c) if the holder is a corporation—the corporation:
(i) enters into administration (within the meaning of section 435C of the Corporations Act 2001); or
(ia) begins restructuring (within the meaning of section 453A of that Act); or
(ii) is to be wound up (whether by a court or voluntarily);
(d) there is a change in the trading name, business address or contact details of the holder;
(e) any other event prescribed by the rules.
Example: For the purposes of paragraph (a), each of the following would be a change in the holder’s business structure:
(a) a change in a person who manages or controls export operations covered by the approved arrangement;
(b) if the holder is a partnership—a change in the membership of the partnership.
Note: The Secretary may suspend or revoke the approved arrangement if:
(a) in certain cases, the holder is not a fit and proper person (see paragraphs 171(1)(b) and 179(1)(b)); or
(b) the holder fails to comply with this section (see paragraphs 171(1)(k) and 179(1)(k)).
Civil penalty provision
(2) A person is liable to a civil penalty if:
(a) the person is required to notify the Secretary of an event in accordance with subsection (1); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
187 Notification of conviction of serious offence
(1) This section applies to the following persons:
(a) an applicant for approval of a proposed arrangement under section 150, and any other person who is to manage or control or carry out export operations in accordance with the proposed arrangement;
(b) the holder of an approved arrangement, and any other person who manages or controls or carries out export operations covered by the approved arrangement;
if the person is not a kind of person who is required by rules made for the purposes of section 373 to be a fit and proper person for the purposes of this Chapter.
(2) If a person to whom this section applies is convicted of an offence against, or ordered to pay a pecuniary penalty under, any Australian law for a contravention involving fraud or dishonesty, the person must notify the Secretary, in writing, of the conviction or order as soon as practicable after the person is convicted or the order is made.
Note 1: If a person referred to in paragraph (1)(a) or (b) is a kind of person who is required by rules made for the purposes of section 373 to be a fit and proper person for the purposes of this Chapter, the person is required to notify the Secretary of certain matters under subsection 374(5).
Note 2: If this section applies to the holder of an approved arrangement and the holder fails to comply with this subsection, the Secretary may suspend or revoke the approved arrangement (see paragraphs 171(1)(k) and 179(1)(k)).
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to notify the Secretary of a conviction or order under subsection (2); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
188 Notice of person ceasing to operate business etc. covered by approved arrangement
(1) If the person (the former holder) who was the holder of an approved arrangement ceases:
(a) to operate the business that carries out export operations covered by the approved arrangement; or
(b) to manage or control export operations covered by the approved arrangement;
the former holder must, as soon as practicable after so ceasing, notify the Secretary, in writing, of that fact. The notice must also include contact details for the former holder.
(2) The approved arrangement is taken to have been revoked at the earlier of the following:
(a) the end of the day a notice under subsection (1) is received by the Secretary;
(b) the end of the seventh day after the day the former holder ceased:
(i) to operate the business that carries out export operations covered by the approved arrangement; or
(ii) to manage or control export operations covered by the approved arrangement.
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to notify the Secretary under subsection (1); and
(b) the person fails to comply with the requirement.
Civil penalty: 60 penalty units.
Chapter 6—Export licences
Part 1—Introduction
189 Simplified outline of this Chapter
The Secretary may, on application by a person, grant the person an export licence to carry out a kind of export operations in relation to a kind of prescribed goods.
An export licence may be granted to carry out more than one kind of export operations in relation to more than one kind of prescribed goods for export to one or more places.
An export licence is subject to certain conditions.
An export licence may remain in force indefinitely or may cease to be in force on an expiry date.
If there is an expiry date for an export licence, the export licence may be renewed.
The matters covered by an export licence or the conditions of the export licence may be varied.
An export licence may be suspended wholly or in part, and may be revoked.
A show cause notice must be given to the holder of an export licence before the licence may be varied, suspended or revoked (except in serious and urgent cases or if the holder has requested the variation, suspension or revocation).
The Secretary may give directions to the holder of an export licence, including prohibiting a kind of export operations being carried out in relation to a kind of prescribed goods in certain circumstances.
The holder of an export licence must comply with certain obligations.
Part 2—Grant of export licence
190 Application for export licence
(1) A person may apply to the Secretary for an export licence to carry out a kind of export operations in relation to a kind of prescribed goods.
(2) An application:
(a) may relate to more than one kind of export operations and more than one kind of prescribed goods; and
(b) may, but is not required to, specify one or more places to which the goods are to be exported.
Note 1: The export of a kind of prescribed goods may be prohibited unless the exporter holds an export licence that covers the export of goods of that kind (see section 29 and rules made for the purposes of that section).
Note 2: Section 377 sets out requirements for applications.
191 Secretary must decide whether to grant export licence
(1) On receiving an application under section 190 for an export licence, the Secretary must decide:
(a) to grant the applicant an export licence; or
(b) to refuse to grant the applicant an export licence.
Note 1: See section 379 for matters relating to dealing with applications.
Note 2: If the application is for an export licence to carry out more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to grant the applicant an export licence to carry out some or all of those kinds of export operations in relation to some or all of those kinds of goods for export to some or all of those places.
Note 3: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)).
Note 4: A decision to refuse to grant an export licence to carry out a kind of export operations in relation to a kind of prescribed goods is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the applicant written notice of the decision (see section 382).
(2) The Secretary may grant the applicant an export licence if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that the following requirements are met:
(a) if the applicant is a kind of person who is required by rules made for the purposes of section 373 to be a fit and proper person for the purposes of this Chapter—the applicant is a fit and proper person;
(b) either:
(i) all relevant Commonwealth liabilities of the applicant have been paid or are taken to have been paid; or
(ii) if one or more relevant Commonwealth liabilities of the applicant have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;
(c) the applicant is, and is likely to continue to be, able to comply with the conditions to which the export licence, if granted, would be subject;
(d) any other requirement prescribed by the rules.
Note: For the purposes of paragraph (b), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431).
(3) If the Secretary grants the applicant an export licence, the Secretary may, if the Secretary considers it appropriate, set an expiry date for the licence.
Note 1: If there is no expiry date for the export licence, the licence remains in force unless it is revoked (see subsection 194(1)).
Note 2: A decision to set an expiry date for an export licence is a reviewable decision (see Part 2 of Chapter 11).
(4) The Secretary may set an expiry date for the export licence under subsection (3) even if rules made for the purposes of subsection 194(5) apply in relation to the licence.
192 Conditions of export licence
(1) An export licence is subject to:
(a) the conditions provided by this Act; and
(b) the conditions prescribed by the rules (other than any of those conditions that the Secretary decides are not to be conditions of the licence); and
(c) any additional conditions that the Secretary considers appropriate and that are specified in the licence.
Note 1: See subsection 222(4) for a condition of an export licence.
Note 2: The holder of an export licence may commit an offence or be liable to a civil penalty if a condition of the licence is contravened (see section 217).
Note 3: An export licence may be suspended or revoked if a condition of the licence is contravened (see sections 205 and 212).
Note 4: A decision to grant an export licence subject to additional conditions is a reviewable decision (see Part 2 of Chapter 11).
Note 5: Part 7 sets out additional obligations of the holder of an export licence.
(2) Without limiting paragraph (1)(b), the rules may prescribe conditions in relation to any or all of the following:
(a) the holder of the export licence;
(b) a kind of export operations;
(c) a kind of prescribed goods;
(d) importing country requirements relating to a kind of export operations or a kind of prescribed goods.
(3) Without limiting paragraph (1)(b) or (c), the rules may prescribe conditions, and the Secretary may impose conditions, that are required to be complied with before or after the export of the goods to which the conditions relate.
(4) For the purposes of this Act, conditions to which an export licence is subject under subsection (1) or section 197 are conditions of the licence.
193 Matters to be stated in export licence
(1) An export licence must:
(a) be in writing; and
(b) be given to the applicant to whom it was granted.
(2) An export licence must state the following information:
(a) the number allocated to the licence;
(b) each kind of export operations and each kind of prescribed goods covered by the licence;
(c) if applicable, each place to which a kind of prescribed goods covered by the licence may be exported;
(d) the date the licenc
