EXPLANATORY STATEMENT
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Export Control Act 1982
Export Control (Wild Game Meat and Wild Game Meat Products) Orders 2010
Legislative Authority
Section 3 of the Export Control Act 1982 (‘the Act’) defines ‘prescribed goods’ to mean goods, or goods included in a class of goods, that are declared by the regulations to be prescribed goods for the purposes of the Act. Section 7 of the Act provides that the regulations may prohibit the export of prescribed goods from Australia absolutely or to a specified place or unless specified conditions or restrictions are complied with or to a specified place unless conditions or restrictions are complied with.
Subsection 25(1) of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or for giving effect to the Act. The matters that the regulations may make provision for include:
- under paragraph 25(2)(f) of the Act, the prescribing of penalties not exceeding 50 penalty units for offences against the regulations; and
- under paragraph 25(2)(g) of the Act, subject to subsection 25(3) of the Act, empowering the Minister to make orders, not inconsistent with the regulations, with respect to any matter for or in relation to which provision may be made by the regulations.
Subsection 25(3) of the Act states that an order shall not be made prescribing any penalty for an offence.
Regulation 3 of the Export Control (Orders) Regulations 1982 (‘the Regulations’) provides that the Minister may, by instrument in writing, make orders, not inconsistent with regulations made under the Act, with respect to any matter for or in relation to which provision may be made by regulations made under the Act.
Regulation 4 of the Regulations provides that if an order provides that the order, or a provision of the order, is a penal provision, a person who fails to comply with the order or provision is guilty of an offence against the Regulations punishable by a fine of 10 penalty units; or if the order or provision specifies that it is a penal provision of a particular level, a fine of the number of penalty units specified for a penal provision of that level set out in the table in regulation 4. Under section 4AA of the Crimes Act 1914 a penalty unit means $110.
The table in regulation 4 specifies five levels of penal provision from 1 to 5. A ‘level 1’ penalty provision attracts a penalty of 10 penalty units and the penalty increases by 10 penalty units for each succeeding level. The highest penalty is 50 penalty units for a ‘level 5’ penalty. Regulation 4 also provides that an offence created in an order is an offence of strict liability.
Background
The Export Control (Wild Game Meat and Wild Game Meat Products) Orders 2010 (‘the Wild Game Orders’), the Export Control (Meat and Meat Products) Orders 2005 (‘the Meat Orders’), the Export Control (Prescribed Goods – General) Orders 2005 (‘the PGGOs’), together with the Act, provide the legislative basis for regulation of the export of wild game meat and wild game meat products and, in particular, the conditions and restrictions on their export. The PGGOs focus primarily on administrative functions that apply to all prescribed goods, whereas the Wild Game Orders and the Meat Orders focus on commodity-specific conditions and restrictions.
It was determined by the Food Exports branch of AQIS in consultation with both the wild game and poultry industry in 2008, as part of a long running review of the export orders, to revise the Game, Poultry and Rabbit Meat Orders 1985 (‘the GPRMOs’) such that separate wild game meat and poultry meat orders would be developed. Accordingly, the Wild Game Orders and the Export Control (Poultry Meat and Poultry Meat Products) Orders 2010 have been developed and the GPRMOs have been consequentially amended to remove game meat and poultry meat and have been renamed the Export Control (Rabbit and Ratite Meat) Orders 1985 (‘the Rabbit and Ratite Orders’).
In the long-term, the intent is to include rabbit and ratite meat, and their associated products, in the Export Control (Meat and Meat Products) Orders 2005 and for the GPRMOs, renamed as the Rabbit and Ratite Orders consequential to the introduction of the Poultry Orders and the Wild Game Orders, to eventually be rescinded in their entirety.
Purpose and Impact
The purpose of the Wild Game Orders, in accordance with the principal objectives set out in order 1.03, is:
(a) to ensure that wild game meat and wild game meat products intended for export for food:
(i) are wholesome or are identified as requiring further processing to be fit for human consumption; and
(ii) meet the importing country requirements; and
(iii) are traceable and can be recalled if required; and
(iv) are derived from animals that were treated humanely during harvest; and
(b) that the integrity of wild game meat and wild game meat products exported, or for export, for food is assured; and
(c) that the trade descriptions for wild game meat and wild game meat products exported, or for export, for food are accurate.
Other objectives of the Wild Game Orders are to ensure that an accurate assessment can be made as to whether the following are met:
(a) the objectives set out above; and
(b) the applicable requirements of the Act and the Wild Game Orders.
The Wild Game Orders incorporate, by way of reference, the Australian Standard for the Hygienic Production of Wild Game Meat for Human Consumption (AS4464:2007). This standard provides the basis for operational controls for food safety and wholesomeness in the game meat industry, whether for export or domestic production.
The Wild Game Orders also incorporate, by way of reference, the further processing sections of the Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS 4696:2007). This standard provides the basis for operational controls for food safety and wholesomeness for further processed meat in the meat industry, whether for export or domestic production, in addition to covering the slaughter of farmed species of animals. The logic for this is that once the unique issues related to harvesting and initial processing have been addressed, the food safety controls become the same as for red meat.
Consultation
The Department of Agriculture, Fisheries and Forestry (‘DAFF’), as represented by the Australian Quarantine and Inspection Service (‘AQIS’), undertook extensive consultation with the game meat industry on the making of the Wild Game Orders. The regulation impact statement included in this explanatory statement provides a detailed account of the nature of the consultation.
Operation
Details regarding the operation of the Wild Game Orders are set out below.
EXPLANATION OF PROVISIONS
Part 1 – Preliminary
Division 1.1 – General
Order 1.01
This order provides that the name of the Orders is the Export Control (Wild Game Meat and Wild Game Meat Products) Orders 2010.
Order 1.02
This order provides that the Wild Game Orders commence on 1 December 2010. However, if the Wild Game Orders have not been registered by 1 December 2010, they will commence on the day after they are registered. Consequential amendments to the Game, Poultry and Rabbit Meat Orders 1985 and the Export Control (Fees) Orders 2001 will commence immediately after the Wild Game Orders commence.
Order 1.03
This order sets out the objectives of the Wild Game Orders. There are principal objectives (suborder (1)) and other objectives (suborder (2)).
The objectives are relevant in two respects. First, the objectives are relevant to the interpretation of provisions of the Wild Game Orders (section 15AA of the Acts Interpretation Act 1901). Secondly, the objectives are referred to by a number of provisions of the Wild Game Orders. For example, an authorised officer’s direction to an exporter under order 8.11 must be to take action that is necessary or appropriate to ensure that one or more of the objectives are met.
For wild game meat and wild game meat products for export for food, the principal objectives relate to:
· wholesomeness, traceability and integrity;
· the satisfaction of importing country requirements;
· the humane treatment of wild game animals during harvest; and
· the accuracy of trade descriptions.
The other objectives are to ensure that accurate assessments can be made as to whether the principal objectives, and the relevant requirement of the Act and the Orders, are met.
Order 1.04
This order declares wild game meat and wild game meat products exported, or for export, for food to be prescribed goods. The Act contains a number of requirements for the export of prescribed goods, and regulations and orders made under the Act may further regulate the preparation and export of prescribed goods.
Wild game meat means any part of a vertebrate animal (including a mammal, bird or reptile but excluding a fish) that has been killed in the field and has not been husbanded in the manner of a farmed animal: see the definitions of wild game meat and wild game animal in suborder 1.10(1).
A wild game meat product means a product containing wild game meat (regardless of any other material contained in the product).
The declaration is limited to wild game meat and wild game meat products exported, or for export, for food. This is intended to exclude wild game meat and wild game meat products exported for purposes other than food.
Accordingly, the effect of order 1.04 is to bring wild game meat and wild game meat products within the regulation of the Act and its subordinate legislation. However, this is not in itself a change: wild game meat and wild game meat products were previously declared to be prescribed goods by order 4 of the Game, Poultry and Rabbit Meat Orders 1985.
The declaration of wild game meat and wild game meat products as prescribed goods also means that the PGGOs will apply to the goods. However, suborder 1.05 affects this position, with the result that only parts of the PGGOs apply to wild game meat and wild game meat products.
Order 1.04 aligns with order 2.01: all goods to which the Orders apply are prescribed goods, and vice versa.
Division 1.2 – Application of export control orders and Australian Standards
Order 1.05
This order sets out how the PGGOs apply to wild game meat and wild game meat products.
The PGGOs state that they are to be read as one with other export control orders, subject to a contrary intention (see section 1.03 of the PGGOs). Order 1.05 is intended to create a clear contrary intention, so that the PGGOs will only apply to wild game meat and wild game meat products in limited circumstances.
The general position is that the PGGOs have no application to wild game meat and wild game meat products: suborder 1.05(2). There are three exceptions to this position.
First, suborder 1.05(1) applies the parts of the PGGOs dealing with how the export control orders apply to partnerships (specifically, section 1.06 of the PGGOs). This means that the Wild Game Orders will apply effectively to partnerships. Generally, under section 1.06 of the PGGOs, an obligation imposed on a partnership can be carried out by any of the partners. The partners will be jointly and severally liable to pay amounts due under an export control order, and a penal provision contravened by one partner may also be contravened by another partner who was involved in the contravention.
Secondly, suborder 1.05(1) applies Part 14 of the PGGOs, which relates to sampling and analysis. This means that the sampling and analysis of wild game meat and wild game meat products under the Wild Game Orders must be carried out in accordance with Part 14 of the PGGOs.
Thirdly, particular provisions of the Wild Game Orders will apply specified provisions of the PGGOs in certain circumstances. The provisions that do this are listed in Note 3 to suborder 1.05(1).
This approach reflects that taken for all other commodity orders.
Order 1.06
This order sets out how the Meat Orders apply to wild game meat and wild game meat products.
The general position is that the Meat Orders have no application to wild game meat and wild game meat products exported, or for export, for food: suborder 1.06(1).
However, the Meat Orders are specifically applied to the preparation of wild game meat products and the further processing of wild game meat: see Divisions 3.2 and 4.5 of the Wild Game Orders. This avoids duplication and allows value adding meat processors to access all meat raw material without additional regulatory burden.
Suborder 1.06(2) ensures that the Meat Orders can be read meaningfully when they are called up by Divisions 3.2 and 4.5. This suborder reconciles differences in terminology between the Meat Orders and the Wild Game Orders by modifying terms used in the Meat Orders. The suborder does not actually amend the Meat Orders.
Order 1.07
This order ensures that the Australian Wild Game Meat Standard can be read meaningfully when it is called up by provisions of the Wild Game Orders. This order reconciles differences in terminology between the Australian Wild Game Meat Standard and Wild Game Orders by modifying terms used in the Australian Wild Game Meat Standard. The order does not actually amend the Australian Wild Game Meat Standard.
Paragraph 1.07(e) disapplies certain provisions of the Australian Wild Game Meat Standard for the purposes of the Wild Game Orders. This means that when a provision of the Wild Game Orders requires compliance with the Australian Wild Game Meat Standard, compliance is not required with the provisions mentioned in paragraph 1.07(e).
Order 1.08
This order ensures that the Australian Meat Standard can be read meaningfully when it is called up by provisions of the Wild Game Orders. This order reconciles differences in terminology between the Australian Meat Standard and Wild Game Orders by modifying terms used in the Australian Meat Standard. The order does not actually amend the Australian Meat Standard.
Paragraph 1.08(f) disapplies clause 2.4 of the Australian Meat Standard for the purposes of the Wild Game Orders. This means that when a provision of the Wild Game Orders requires compliance with the Australian Meat Standard, compliance is not required with clause 2.4 of the Standard. Clause 2.4 imposes requirements on the proprietors of meat transport businesses.
Order 1.09
This order ensures that the Wild Game Orders prevail if there is any inconsistency between a requirement of the Orders and a requirement of another export control order or a standard or other document applied by the Orders.
Division 1.3 – Interpretation
Order 1.10
This order defines a series of terms used in the Orders. Suborders (2), (3) and (4) contain definitions of eligible for export, integrity, and wholesome.
Order 1.11
This order facilitates the operation of penal provisions in the Orders. The Export Control (Orders) Regulations 1982 allow for five levels of penal provisions. The penalty for a level 1 penal provision is 10 penalty units; the penalty for a level 2 penal provision is 20 penalty units; and so on. Order 1.10 allows the Orders to describe a penal provisions using the term “Level x penal provision”.
Order 1.12
This order deems notes not to be part of the Orders. The Orders contain a number of explanatory notes that would otherwise be part of the Orders because they are not marginal notes, footnotes or endnotes. Notes to the Orders are intended as guidance only and are not operative provisions.
Part 2 – Application
This Part defines the scope of the Orders. Generally, the Orders apply to wild game meat and wild game meat products exported, or for export, for food.
However, some classes of wild game meat and wild game meat products are excluded from the Orders (i.e. are not regulated by the Orders). Some of the excluded classes may come back within the regulation of the Orders if a government certificate is sought.
Also, in some circumstances, the export of wild game meat or wild game meat products may be granted an exemption from the Orders on a case-by-case basis.
Division 2.1 – Wild game meat and wild game meat products to which these Orders apply
Order 2.01
Paragraph 2.01(1)(a) applies the Orders generally to wild game meat and wild game meat products exported, or for export, for food.
Wild game meat means any part of a vertebrate animal (excluding a fish) that has been killed in the field and has not been husbanded: see the definitions of wild game meat and wild game animal in suborder 1.10(1).
A wild game meat product is any product that contains wild game meat (regardless of any other material contained in the product).
The Orders only apply to wild game meat and wild game meat products exported, or for export for food. The Orders do not apply to wild game meat and wild game meat products exported for other purposes.
Order 2.01 aligns with order 1.04: all goods to which the Orders apply are prescribed goods, and vice versa.
Suborder 2.01(2) enables the Orders to be read easily. A reference to “wild game meat” or “wild game meat products” only applies to wild game meat or wild game meat products exported, or for export for food. However, some provisions may explicitly provide otherwise.
Division 2.2 – Orders do not apply to certain wild game meat products, small consignments and exports to New Zealand
Division 2.2 creates general exceptions from the Orders for three classes of wild game meat and wild game meat products. The excepted classes will still be prescribed goods under order 1.04.
If wild game meat or wild game meat products falls within one of the three exceptions, the Orders may still apply if a government certificate is sought (see Division 2.2).
Order 2.02
This order provides the first exception, for the following wild game meat products: soup, soup powder, soup concentrate, meat extracts, tallow, gelatine and regenerated collagen products.
Wild game meat products that contain less than 5% wild game meat (measured by mass) also fall under the exception. However, such products might be covered by another export control orders if they contain ingredients that bring the products under the other order (eg the products could contain eggs and be subject to the Export Control (Eggs and Egg Products) Orders 2005).
Order 2.03
This order provides the second exception, for small consignments. Wild game meat or wild game meat products exported in a consignment of under 10kg will not be regulated by the Orders.
Order 2.04
This order provides the third exception, for exports to New Zealand. The export of wild game meat and wild game meat products to New Zealand is not regulated by the Orders.
Division 2.3 – Re-application of Orders for purposes of government certificates
This Division allows for the Orders to apply to certain goods that are otherwise not regulated by the Orders because they are covered by one of the three exceptions in Division 2.2.
In summary, if a government certificate is sought for wild game meat or wild game meat products excluded from the Orders by Division 2.2, a notice is to be issued by the Secretary that specifies provisions of the Orders that apply to the wild game meat or wild game meat products.
| The Orders do not apply to… | but… | and… |
| soup and other kinds of wild game meat products listed in order 2.02 | a government certificate may be sought… | the Secretary may, by notice, re-apply some or all of the Orders. |
| small consignments |
| exports to New Zealand |
The object of Division 2.3 is to facilitate the issue of government certificates for wild game meat or wild game meat products otherwise excluded from the Orders (an importing country might require a government certificate). If a government certificate is sought, the wild game meat or wild game meat products may then be regulated by the Orders.
Order 2.05
This order provides that the Division applies to each of the products otherwise excluded from the Orders by Division 2.2.
Order 2.06
This order provides that if a government certificate is sought for wild game meat or wild game meat products excluded from the Orders by Division 2.2, the applicant for the certificate must also apply for a notice from the Secretary. The notice is a notice that some or all of the provisions of the Orders apply to the wild game meat or wild game meat products.
Suborder 2.06(2) sets out the requirements for an application for a notice.
Order 2.07
This order provides for the giving of notices. A notice will specify the provisions of the Orders that apply to the wild game meat or wild game meat products that are otherwise excluded from the Orders under Division 2.2. The notice may specify all the provisions of the Orders, or only some provisions.
A notice will be given if an application is made for it. However, a notice does not have to be given if the application for the notice does not comply with the requirements in suborder 2.06(2), or if the information in the application is inaccurate or incomplete, or there is no sound basis for the information.
While a notice is in force, the provisions of the Orders that are specified in the notice will apply to the wild game meat or wild game meat products, despite Division 2.2.
Order 2.08
This order requires the Secretary to notify a person if a notice is not given upon the person’s application under order 2.06. The notice must contain reasons for the decision, and a statement that the decision is reviewable.
Suborder 2.08(1) deems a notice to be refused if an application is undecided 30 days after it is made. This provision enables an applicant to seek review action if an application has not been decided.
Order 2.09
This order allows the Secretary to amend and revoke notices given under order 2.07. Amendments and revocations must be notified in writing.
The Secretary’s power of revocation is exercisable if the information given in the application for the notice was inaccurate, incomplete or did not have a sound basis: see suborder 2.09(2).
Division 2.4 – Orders do not apply to ship’s stores etc
Division 2.4 creates further exceptions from the Orders for certain wild game meat and wild game meat products. However, Division 2.3 will not apply to the goods (i.e. the Orders cannot be re-applied to the goods because a government certificate is sought and a notice is given).
Order 2.10
This order excludes the following categories of wild game meat and wild game meat products from the Orders:
· ships’ or aircraft stores for passengers or crews to consume during a voyage;
· re-exports that have been held by Customs at all times after import;
· re-exports that are re-exported with the same covering and trade description under which they were imported;
· exports to an external territory for consumption within the external territory;
· exports to a resource industry structure in the Joint Petroleum Development Area.
Division 2.5 – Exemptions
Division 2.5 allows for wild game meat and wild game meat products to be exempted from provisions of the Orders on a case-by-case basis. An exemption must be applied for, and an exemption can be subject to certain conditions.
An instrument can contain three matters:
· a specification of the wild game meat or wild game meat products covered by the exemption;
· a specification of the provisions of the Orders from which the wild game meat or wild game meat products are exempt; and
· the conditions attached to the instrument.
Order 2.11
This order sets out how exemptions from the Order are applied for and given.
An application for an exemption must be given at least 10 days before the proposed export, unless the Secretary allows for a shorter time. The application must specify from which provisions of the Orders an exemption is sought, give reasons for seeking the exemption and provide sufficient information to enable the identification of the wild game meat or wild game meat products over which the exemption is sought.
An exemption is given by instrument (although not a legislative instrument). An exemption may be given if the export of the wild game meat or wild game meat products falls within one or more of the following four categories:
· a commercial sample;
· an export for experimental purposes;
· exceptional circumstances;
· special commercial circumstances.
The giving of an exemption is discretionary: even if the export falls within one or more of the above categories, an exemption may be refused by the Secretary for some other reason.
An instrument that gives an exemption may be subject to conditions specified in the instrument.
Order 2.12
This order allows the Secretary to amend an instrument of exemption. An amendment could be made to change the provisions of the Orders to which the exemption relates, or to change the conditions upon which the instrument is given.
Order 2.13
This order limits the scope of the conditions that may be attached to an instrument of exemption. A condition must be for the purposes of ensuring that one or more of the objectives of the Orders are met. The objectives are set out in order 1.03.
Order 2.14
This order gives force to an instrument of exemption. While an instrument has effect, the provisions of the Orders specified in the instrument do not apply to the wild game meat or wild game meat products specified in the instrument.
Order 2.15
This order provides for when an instrument of exemption has effect. An instrument will commence to have effect from the day it is given to the applicant, but it may commence on a later day if specified. An instrument will cease to have effect 12 months after it is issued, but it may cease to have effect earlier if it is revoked, or if the instrument specifies that it is to cease to have effect earlier.
Order 2.16
This order clarifies that when an instrument ceases to have effect, the exemption in the instrument ceases to have effect. In other words, the provisions from which the wild game meat or wild game meat products were exempt come back into force for the wild game meat or wild game meat products.
Part 3 – Preparation of wild game meat and wild game meat products for export for food
This Part sets out requirements that must be complied with for the preparation of wild game meat and wild game meat products for export for food.
The person responsible for compliance is the occupier of the establishment at which the preparation is carried out. “Occupier” is defined by suborder 1.10(1). For a registered establishment, the occupier is the person in whose name the establishment is registered.
Some of the requirements in the Part are penal provisions. Also, if a requirement is not complied with, the registration of the establishment or its approved arrangement may be suspended or revoked: see paragraph 20.1(a) of Schedule 1.
Division 3.1 – Registration and management practices
Order 3.01
This order requires that the preparation of wild game meat and wild game meat products may only be carried out at a registered establishment: see suborder 3.01(1). Establishments are registered under Schedule 1.
The preparation of kangaroo or wild boar carcases may only be carried out at establishments registered solely for the processing of wild game carcases (i.e. the preparation of these carcases cannot be carried out at establishments registered for general preparation of wild game meat and wild game meat products): see suborder 3.01(2).
Both 3.01(1) and (2) are penal provisions. The penalty is 50 penalty units. The person guilty of the offence will be the person occupying the establishment at which the preparation was carried out.
However, the requirements of order 3.01 do not apply to the chilling, loading or temporary storage of wild game animal carcases for transport, if the establishment is not used for other forms of preparation of wild game meat or wild game meat products. These aspects of field preparation are regulated under order 3.04 and Division 4.3. Wild game animal carcases are the carcases of wild game animals after harvesting but before skinning at the processing establishment.
Order 3.02
This order supplements order 3.01. The preparation of wild game meat and wild game meat products must be carried out at a registered establishment that has an approved arrangement in effect for the operations at the establishment. Arrangements are approved under Schedule 1.
Accordingly, preparation must be at an establishment that is registered and has an approved arrangement. If the establishment is not registered or does not have an approved arrangement, order 3.01 or 3.02 will be contravened. Like order 3.01, order 3.02 is a penal provision.
Like order 3.01, order 3.02 does not apply to the chilling, loading or temporary storage of wild game animal carcases for transport, if the establishment is not used for other forms of preparation of wild game meat or wild game meat products. However, there must be an arrangement approved by the relevant State or Territory authority for these activities.
Order 3.03
This order calls up the requirements of Schedule 2 for an establishment. Schedule 2 contains requirements relating to the management practices of an establishment.
Division 3.2 – Export standards
The following table summarises the requirements of Division 3.2
| For the… | of… | certain provisions of the following must be complied with by the occupier… |
| preparation (other than further processing) | wild game meat | Australian Wild Game Meat Standard |
| Schedules 3-7 |
| Division 4.3 (field preparation) |
| importing country requirements |
| further processing | Australian Meat Standard |
| Schedules 5-7 |
| Division 4.3 (field preparation) |
| importing country requirements |
| preparation (including further processing) | wild game meat products | Australian Meat Standard |
| Schedules 5-7 |
| Division 4.3 (field preparation) |
| importing country requirements |
Order 3.04
This order requires that an occupier only prepare wild game meat or wild game meat products if the occupier is satisfied (on reasonable grounds) that the field preparation requirements of Division 4.3 were complied with for the wild game meat or wild game meat products.
Accordingly, the occupier of an establishment is responsible for ensuring that the field preparation of the wild game meat and wild game meat products prepared at the establishment was done in accordance with Division 4.3 (that is, it was done by approved persons and in accordance with the Australian Wild Game Meat Standard).
Order 3.05
This order applies to the preparation of wild game meat. It does not apply to the further processing of wild game meat, or the preparation of wild game meat products.
The order requires compliance with the Australian Wild Game Meat Standard by the occupier of an establishment. Some provisions of the Australian Wild Game Meat Standard do not have to be complied with: those are specified in Schedules 6 and 7.
Order 3.06
This order applies to the further processing of wild game meat and the preparation of wild game meat products.
The order requires compliance with certain provisions of the Australian Meat Standard by the occupier of an establishment.
Order 3.07
This order applies to the preparation of wild game meat. It does not apply to the further processing of wild game meat, or the preparation of wild game meat products.
The order requires compliance with relevant requirements of Schedules 3 to 7 by the occupier of an establishment. Schedule 3 deals with structural requirements for an establishment, Schedule 4 deals with operational hygiene, Schedule 5 deals with preparation and transport, Schedule 6 deals with trade descriptions and official marks, and Schedule 7 deals with the integrity of wild game meat and wild game meat products.
Order 3.08
This order applies to the further processing of wild game meat and the preparation of wild game meat products.
The order requires compliance with certain parts of the Meat Orders and Schedules 5-7 of the Wild Game Orders by the occupier of an establishment.
Order 3.09
This order requires compliance with relevant importing country requirements by the occupier of an establishment. This provision is intended to ensure that market access requirements of an importing country relating to the preparation of wild game meat and wild game meat products are met.
Part 4 – Conditions and restrictions on export of wild game meat and wild game meat products
This Part sets out requirements that must be complied with for the export of wild game meat and wild game meat products for food. If a requirement is not complied with, the export is prohibited, and an offence under the Act may be committed by the occupier or the exporter.
The offences under the Act are serious penal provisions that can attract terms of imprisonment.
Division 4.1 – Requirements for notice of intention and export permit
This Division requires two things to be done before wild game meat or wild game meat products are exported. First, a notice of intention to export must be given. Secondly, an export permit must be granted.
Order 4.01
This order requires a notice of intention to export to be given to the Secretary before wild game meat or wild game meat products are loaded for export. The notice must nominate a place at which the goods for export may be inspected. A notice must be in writing and in an approved form. Clause 16 of Schedule 8 further requires that the notice be given electronically.
The failure to give a notice as required by the order will be an offence under section 6 of the Act.
Order 4.02
This order prohibits the export of wild game meat or wild game meat products unless an export permit is in effect. Export permits are applied for and granted under Schedule 8.
Division 4.2 – Conditions and restrictions on exports of wild game meat and wild game meat products
This Division has two effects. First, the export of wild game meat or wild game meat products will be prohibited unless the requirements of Divisions 4.3 to 4.5 are complied with. Secondly, the conditions and restrictions in Divisions 4.3 to 4.5 are specified for the purposes of Part II of the Act. This means that a failure to comply with a condition or restriction in Division 4.3 to 4.5 may be an offence under the Act.
Order 4.03
This order prohibits the export of wild game meat or wild game meat products unless the requirements Divisions 4.3 to 4.5 are complied with. A contravention of this prohibition may be an offence under Part II of the Act.
Order 4.04
This order specifies the conditions and restrictions in Divisions 4.3 to 4.5 for the purposes of Part II of the Act. This means that a failure to comply with a condition or restriction in Division 4.3 to 4.5 may be an offence under the Act. An offence may be committed by the exporter or the occupier of an establishment.
Division 4.3 – Field preparation
This Division contains three requirements that relate to the harvesting of wild game animals in the field. Both the exporter and the occupier of an establishment must ensure that these requirements have been met in respect of wild game meat or wild game meat products exported by the exporter or prepared at the occupier’s establishment.
Order 4.05
This order requires that the harvesting of wild game animals in the field be done by an approved field harvester. Field harvesters are approved by the relevant State or Territory controlling authority.
Suborder 4.05(2) also requires that the harvesting of wild game animals in the field be done in accordance with the Australian Wild Game Meat Standard. The Australian Wild Game Meat Standard includes requirements relating to animal welfare, harvesting and field dressing.
Order 4.06
This order requires that the chilling of wild game animal carcases in the field (i.e. after the animal has been harvested) be done in an approved field depot. Field depot operators are approved by the relevant State or Territory controlling authority.
Suborder 4.06(2) also requires that the harvesting of wild game animal carcases in the field be done in accordance with the Australian Wild Game Meat Standard. The Australian Wild Game Meat Standard includes requirements relating to the chilling and refrigeration of wild game animal carcases.
Order 4.07
This order requires that the transport of wild game animal carcases in the field (i.e. after the animal has been harvested) be done in a vehicle operated by an approved field harvester.
Suborder 4.07(2) also requires that the transport of wild game animal carcases in the field be done in accordance with the Australian Wild Game Meat Standard. The Australian Wild Game Meat Standard includes requirements relating to the transport of wild game animal carcases.
Division 4.4 – Registration and approved arrangement
This Division mirrors Division 3.1. It contains two requirements: wild game meat and wild game meat products must be prepared at a registered establishment for which there is an approved arrangement in effect.
Order 4.08
This order requires that the preparation of wild game meat and wild game meat products may only be carried out at a registered establishment. Establishments are registered under Schedule 1.
The preparation of kangaroo or wild boar carcases may only be carried out at establishments registered solely for the processing of wild game carcases (i.e. the preparation of these carcases cannot be carried out at establishments registered for general preparation of wild game meat and wild game meat products): see suborder (2).
However, the requirements of order 4.08 do not apply to the chilling, loading or temporary storage of wild game animal carcases for transport, if the establishment is not used for other forms of preparation of wild game meat or wild game meat products. These aspects of field preparation are regulated under through Division 4.3.
Order 4.09
This order supplements order 4.08. The preparation of wild game meat and wild game meat products must be carried out at a registered establishment that has an approved arrangement in effect for the operations at the establishment. Arrangements are approved under Schedule 1.
Like order 4.08, order 4.09 does not apply to the chilling, loading or temporary storage of wild game animal carcases for transport, if the establishment is not used for other forms of preparation of wild game meat or wild game meat products. However, there must be an arrangement approved by the relevant State or Territory authority for these activities.
Division 4.5 – Export standards
This Division contains a number of further requirements that must be met for the export of wild game meat or wild game meat products.
Order 4.10
This order imposes the following requirements for the premises at which wild game meat and wild game meat products are prepared, and the transport of wild game meat and wild game meat products:
| For the… | of… | the following must be complied with… |
| preparation (other than further processing) | wild game meat | Australian Wild Game Meat Standard |
| Schedule 3 |
| further processing | wild game meat | Australian Meat Standard |
| Meat Orders, Part 1 of Schedule 3 |
| preparation (including further processing) | wild game meat products | Australian Meat Standard |
| Meat Orders, Part 1 of Schedule 3 |
| transport | wild game meat and wild game meat products | Australian Meat Standard |
| Meat Orders, Part 2 of Schedule 3 |
Order 4.11
This order requires the preparation of wild game meat and wild game meat products for export for food to be segregated from the preparation of wild game meat or wild game meat products:
· for animal food;
· for pharmaceutical use; or
· that are not for export.
Meat or meat products not derived from a wild game animal must also be segregated.
The segregation requirement is that the preparation must not occur at the same establishment, unless the approved arrangement for the establishment allows, and the wholesomeness and integrity of the wild game meat and wild game meat products are assured. This is likely to be achieved by an establishment having sufficient controls for segregation, identification and security.
Order 4.12
This order imposes the following requirements relating to operational hygiene:
| For the… | of… | the following must be complied with… |
| preparation (other than further processing) | wild game meat | Australian Wild Game Meat Standard |
| Schedule 4 |
| further processing | wild game meat | Australian Meat Standard |
| Meat Orders, Schedule 4 |
| preparation (including further processing) | wild game meat products | Australian Meat Standard |
| Meat Orders, Schedule 4 |
| transport | wild game meat and wild game meat products | Australian Meat Standard |
Order 4.13
This order imposes the following requirements for the preparation of wild game meat and wild game meat products:
| For the… | of… | the following must be complied with… |
| preparation (other than further processing) | wild game meat | Australian Wild Game Meat Standard |
| Schedule 5 |
| further processing | wild game meat | Australian Meat Standard, clauses 12-15 (subject to exceptions) |
| Meat Orders, clause 6, Division IV of Part 1, and Part 2, of Schedule 5 |
| Clauses 1 and 4 of Schedule 5 |
| preparation (including further processing) | wild game meat products | Australian Meat Standard, clauses 12-15 (subject to exceptions) |
| Meat Orders, clause 6, Division IV of Part 1, and Part 2, of Schedule 5 |
| Clauses 1 and 4 of Schedule 5 |
Order 4.14
This order requires that the transport of wild game meat and wild game meat products between establishments comply with:
· the Australian Meat Standard;
· Schedule 5 of the Meat Orders; and
· Schedule 5.
These requirements are in addition to the transport requirements imposed by order 4.10 and 4.12.
Order 4.15
This order requires that the trade descriptions for wild game meat and wild game meat products comply with Part 1 of Schedule 6.
Order 4.16
This order requires wild game meat, wild game meat products, and cartons for wild game meat or wild game meat products, to contain the official marks required by Part 2 of Schedule 6.
Order 4.17
This order imposes the following requirements relating to the segregation, identification, integrity assurance, recall and transfer of wild game meat and wild game meat products:
| For the… | of… | the following must be complied with… |
| preparation (other than further processing) | wild game meat | Australian Wild Game Meat Standard (other than provisions disapplied by Schedule 7) |
| Schedule 7 |
| further processing | wild game meat | Australian Meat Standard |
| Schedule 7 |
| preparation (including further processing) | wild game meat products | Australian Meat Standard |
| Schedule 7 |
Suborder (3) prohibits the export of wild game meat and wild game meat products unless the exporter has a valid consignment declaration. Among other things, this ensures that an exporter has documentary evidence of the integrity of the wild game meat or wild game meat products he or she proposes to export.
Part 5 – Exporter’s documentary obligations
This Part sets out requirements that must be complied with by an exporter of wild game meat or wild game meat products. The requirements relate to documentation, notification and record-keeping.
Order 5.01
This order requires an exporter to hold export permits and government certificates under conditions of security. The intention of this provision is to place responsibility on exporters to ensure the security of official documentation.
The penalty for a contravention of order 5.01 is 50 penalty units.
Order 5.02
This order requires an exporter to destroy an electronically issued export permit or government certificate if the permit or certificate is revoked or if the exporter abandons the intention to export the relevant wild game meat or wild game meat products. The requirement extends to any electronic material from which the permit or certificate can be reproduced.
This provision is designed to ensure that export permits and government certificates cannot be used by an exporter following revocation, cancellation or the abandonment of an intention to export.
The exporter must notify an authorised officer if material is destroyed. This ensures that an authorised officer can be satisfied that the exporter cannot reproduce a certificate or export permit for the wild game meat or wild game meat products.
Order 5.03
This order requires an exporter to return a physically issued export permit or government certificate to an authorised officer within 10 days of revocation or cancellation. This provision is designed to ensure that export permits and government certificates cannot be used by an exporter following revocation or cancellation.
The requirement to return an export permit or government certificate within 10 days is also triggered if the exporter abandons the intention to export the wild game meat or wild game meat products.
Order 5.04
This order requires an exporter to notify an authorised officer if any of the following occur:
· the wholesomeness of the wild game meat or wild game meat products is jeopardised (for wholesomeness, see suborder 1.10(4));
· the integrity of the wild game meat or wild game meat products is not assured (for integrity, see suborder 1.10(3));
· a requirement of orders 4.05 to 4.17 is not complied with (i.e. one of the export conditions or restrictions specified for Part II of the Act);
· the wild game meat or wild game meat products do not meet the relevant importing country requirements.
The notification must be immediate.
Order 5.05
This order requires an exporter to have effective ongoing measures to ensure the accuracy and completeness of information provided to the Secretary in connection with notices of intention to export and applications for export permits and government certificates.
The failure to provide accurate and complete information can be a ground for the revocation of the particular instrument applied for: see Schedule 8.
Order 5.06
This order imposes an ongoing requirement on exporters to document measures taken by the exporter to ensure compliance with the provisions of Part 5.
Order 5.07
This order imposes obligations on exporters to retain certain documents for at least two years after the documents are made or come into the exporter’s possession. The documents are:
· copies of applications for export permits;
· declarations made to the consignee of wild game meat and wild game meat products dispatched from an establishment for export; and
· any document made by the exporter or in the possession of the exporter relevant to the exporter’s compliance with the Act and the Orders.
Part 6 – Audits
This Part allows for audits to be conducted in relation to various operations in respect of wild game meat and wild game meat products. Audits are carried out by authorised officers or approved auditors.
Division 6.1 – Performance of audits
Order 6.01
This order allows the Secretary to require audits. An audit may be for the following operations:
· the preparation of wild game meat and wild game meat products at a registered establishment;
· the export of wild game meat and wild game meat products (by an exporter or the occupier of a registered establishment).
Suborder 6.01(2) sets out the scope of an audit. The scope of an audit is within the discretion of the Secretary. An audit may relate to compliance by the operations with relevant requirements (eg requirements of the Act, the Orders or an approved arrangement). An audit may be for the whole of the relevant operations, or only part of the operations. An audit may relate to all wild game meat and wild game meat products or only some wild game meat and wild game meat products.
Suborder 6.01(3) allows the Secretary to require individual audits or a program of audits. If a program of audits is required, the Secretary may still require additional audits on top of the program of audits.
Order 6.02
This order allows two classes of persons to perform audits: authorised officers and approved auditors. An authorised officer is a person appointed by the Secretary under section 20 of the Act. An approved auditor is a person approved under Schedule 9 of the Orders.
An audit may only be performed by an approved auditor (as opposed to an authorised officer) if the Secretary so specifies in writing.
Order 6.03
This order provides that the purpose of an audit is to establish whether there is compliance with the relevant requirements for the audited operations (eg the requirements of the Act, the Orders, an approved arrangement, or a condition of approval of an approved arrangement).
Order 6.04
This order provides that prior notice is not required for an audit. In other words, an audit may be required without any notice to the occupier or exporter.
However, suborder 6.04(2) requires that an auditor must produce his or her identity card upon request by the occupier or exporter, before commencing the audit.
Order 6.05
This order requires audits to be conducted as expeditiously as practicable, and with as little interference as practicable to the operations concerned.
Order 6.06
This order requires occupiers and exporters to provide assistance to auditors.
The assistance that must be provided is the assistance required by the auditor that is reasonably necessary to enable the auditor to perform the audit. Suborder 6.06(2) sets out a non-exhaustive list of the matters that constitute assistance to an auditor, including access to premises, providing information to the auditor and operating equipment.
A failure to provide assistance to an auditor as required by this order can have consequences for the occupier or exporter. An occupier’s approved arrangement may be suspended or revoked (clause 20 of Schedule 1), and an export permit or government certificate can be refused (Schedule 8).
Division 6.2 – Failure to comply and audit report
This Division provides for the outcomes of an audit.
Order 6.07
This order imposes requirements on an auditor when the auditor considers that there has been a failure to comply with a relevant requirement (eg of the Act, the Orders or an approved arrangement). The auditor must notify the occupier or exporter immediately.
The auditor must also determine whether the failure to comply is a critical non-compliance. If so, the auditor must notify the Secretary immediately (as well as the occupier or exporter).
Suborder 6.07(3) defines critical non-compliance. Generally, a critical non-compliance is one where the objectives of the Orders (mentioned in order 1.03) are jeopardised.
This order is not limited to the requirements to which the audit was originally meant to relate (i.e. the requirements specified for the purposes of suborder 6.01(2)). Accordingly, if an audit is required to determine compliance with certain requirements, and the auditor considers there has been a failure to comply with a different requirements, the auditor will be required to notify the occupier or exporter and, if there is a critical non-compliance, notify the Secretary.
Order 6.08
This order sets out the requirements for audit reports (i.e. reports completed by auditors following the conduct of an audit).
An audit report must be completed for an audit. A report must be in writing.
An audit report must contain certain information. First, an audit report must contain the basic information about the audit specified in suborder 6.08(2).
An audit report must state whether, in the auditor’s opinion, the audit was satisfactorily completed. A report must also state whether, in the auditor’s opinion, the applicable requirements mentioned in suborder 6.01(2) are complied with by the relevant operations (eg the requirements of the Act, the Orders or an approved arrangement).
For each failure to comply with a requirement mentioned in suborder 6.01(2), an audit report must state whether, in the auditor’s opinion, the failure to comply amounts to a critical non-compliance (see suborder 6.07(3)).
An audit report must give reasons for the opinions of the auditor about the above matters.
An audit report may contain the following other information:
· identification of potential non-compliance with a requirement mentioned in paragraph 6.01(2)(a);
· recommendations for action to be taken to address non-compliance, or the risk of potential non-compliance, with a requirement;
· recommendations for action to be taken to ensure that a failure to comply with a requirement does not recur;
· recommendations for action to assess the effectiveness of action recommended by the auditor.
Order 6.09
An audit report must be given to both the occupier or exporter and the Secretary. It must be given within 14 working days after completing the audit. The original audit report is given to the Secretary, and a copy of the report is given to the occupier or exporter.
Part 7 – Official marks and marking devices
This Part provides requirements relating to official marks. The contravention of a requirement in this Part may be an offence under section 14 of the Act. Section 14 of the Act makes it an offence to do certain things relating to official marks in contravention of the Orders. An offence under section 14 of the Act is punishable by up to five years imprisonment.
Order 7.01
Suborder 7.01(1) provides that only certain official marks may be applied to wild game meat, wild game meat products, or their packaging or associated material.
There are five official marks that may be applied. The five marks are the marks declared by sections 13.06, 13.10, 13.11, 13.12 and 13.16 of the PGGOs to be official marks.
If another official mark declared by Part 13 of the PGGOs is applied to wild game meat, wild game meat products or their packaging or associated material, suborder 7.01(1) will be contravened.
Suborder 7.01(2) limits the persons who may apply official marks to the following:
· an authorised officer (or a person acting under the direction of an authorised officer);
· a person designated by an approved arrangement to apply official marks (note the person must apply the official marks in accordance with the arrangement);
· a person approved by the Secretary to apply official marks in a particular registered establishment (note the person must apply the official mark in accordance with the approval).
If a person not mentioned in suborder 7.01(2) applies an official mark, the suborder will be contravened and an offence may be committed. This includes persons who apply official marks contrary to their designation in an approved arrangement or their approval by the Secretary.
Suborder 7.01(3) precludes the application of an official mark by a person if the person suspects that the identification or traceability of the wild game meat or wild game meat products is compromised, the integrity of the wild game meat or wild game meat products is not assured, or the wild game meat or wild game meat products are no longer wholesome or have deteriorated.
Additionally, the foreign country identification mark in section 13.06 of the PGGOs may not be applied if the relevant importing country requirement that permits or requires the mark to be applied is not satisfied.
Each of suborders 7.01(1), (2) and (3) apply separately and independently. Accordingly, an official mark must be applied of the kind set out in suborder (1), by a person mentioned in suborder (2), and not in a circumstance mentioned in suborder (3). If any of those three conditions are not satisfied, order 7.01 will be contravened and an offence may be committed.
Order 7.02
This order contains further requirements relating to official marks. The contravention of a requirement in order 7.02 may be an offence under section 14 of the Act.
Suborder 7.02(1) deals with marks that resemble or are intended to pass for official marks. Such marks must not be applied to wild game meat or wild game meat products unless applied by a person designated to apply the mark under an approved arrangement, and the mark is applied in accordance with the approved arrangement. Accordingly, applying a resemblance for an official mark, or a mark intended to pass for an official mark, will be an offence unless done in accordance with an approved arrangement.
Suborder 7.02(2) precludes the altering of an official mark so that it is misleading or deceptive. A person who engages in conduct causing the altering of an official mark so that it is misleading or deceptive may commit an offence.
Order 7.03
This order precludes altering or interfering with an official mark. Altering or interfering with an official mark will be an offence under section 14 of the Act unless it is required or authorised by the Orders, it is done by an authorised officer or under an authorised officer’s direction, or it is done by a person designated under an approved arrangement in accordance with the approved arrangement.
Order 7.04
This order makes it an offence to manufacture an official mark or official marking device, or to possess an official marking device. An official marking device is a device that can apply an official mark (see section 13.17 of the PGGOs).
However, order 7.04 will not be contravened, and an offence will not be committed, if a person is approved by the Secretary, is an authorised officer or acting under the direction of an authorised officer, or if the person is designated by an approved arrangement and is acting in accordance with the arrangement.
Order 7.05
This order requires official marking devices that have been damaged or worn or are unfit to be given to an authorised officer as soon as practicable. The person responsible for compliance with this order is the occupier of the establishment under whose control the device is.
Order 7.06
This order requires official marks and official marking devices to be kept in conditions of security when not in use. The person responsible for compliance with this order is the occupier of the relevant establishment. As a level 5 penal provision, a contravention of this order is punishable by up to 50 penalty units.
Order 7.07
This order supports the operation of Part 7 by imposing record-keeping requirements on the occupier of an establishment. An occupier must make written records of the receipt, use and return of official marking devices, and of the receipt and manufacture, use, defacement and removal of official marks, at the establishment.
Part 8 – Functions and powers of authorised officers
Division 8.1 – Functions of authorised officers
Order 8.01
This order allows for authorised officers who are meat safety inspectors to carry out meat safety inspectors’ functions under the Australian Wild Game Meat Standard (for wild game meat) and the Australian Meat Standard (for wild game meat products). Both Standards confer functions on meat safety inspectors. Suborder 1.10(1) defines meat safety inspector for the purposes of the Orders.
Order 8.02
This order confers general functions on authorised officers, in addition to the specific functions of authorised officers under various provisions of the Orders. The general functions are exercisable for the purposes of ensuring that one or more of the objectives of the Orders are met. The general functions relate to inspections and dispositions, and any other action that an authorised officer considers necessary or appropriate.
Suborder 8.02(2) empowers authorised officers to order the stopping the chain at an establishment in order to perform a function.
Order 8.03
This order requires that the occupier of an establishment ensure compliance with a disposition applied by an authorised officer.
Order 8.04
This order addresses the role of veterinary officers. Veterinary officers are authorised officers who are required to hold veterinary qualifications for their duties (see suborder 1.10(1)).
If a veterinary officer is located at a registered establishment, inspections and dispositions under order 8.01 must be carried out by the veterinary officer or an authorised officer acting under the veterinary officer’s supervision. The veterinary officer is also responsible for the implementation of procedures for notifiable diseases (a notifiable disease is a disease that must be notified under State or Territory law: see suborder 1.10(1)).
Order 8.05
This order allows authorised officers to inspect and retain any thing, area, facilities, equipment or services at premises used for the preparation or transport of wild game meat or wild game meat products.
Where a thing or area is retained, it is to be identified using an identification tag or other means approved by the Secretary.
Order 8.06
This order provides a general power of retention. Where this power is used, an authorised officer may identify the thing retained with a tag or other means of identification. This order precludes the removal of a tag or other means of identification attached to a thing or area retained. This order is a level 1 penal provision; a breach is punishable by up to 10 penalty units.
Order 8.07
This order prohibits any person from interfering with, moving, using or processing an object that has been identified by an authorised officer under order 8.06.
This order is a level 1 penal provision; a contravention is punishable by up to 10 penalty units.
Order 8.08
This order allows for certificates of condemnation to be given by authorised officers for carcases or carcase parts. A certificate must be requested, in writing, by the occupier of the establishment within one month of the condemnation of the carcase or carcase part. A certificate may be given if the authorised officer is satisfied that the occupier has a system of records that enables the verification of the ownership of the carcase or carcase part.
Order 8.09
This order requires occupiers of establishments to provide reasonable assistance to authorised officers. A failure to provide reasonable assistance may result in the suspension or revocation of the occupier’s approved arrangement (see clause 20 of Schedule 1).
Order 8.10
This order requires the presence of an authorised officer at an establishment for an operation if, under the approved arrangement for the establishment, the operation requires the presence of an authorised officer. The occupier of the establishment must apply for the provision of the authorised officer’s services under Schedule 10, and the operation concerned must not commence unless an authorised officer is present.
Division 8.2 – Directions to exporters
This Division allows for directions to be given to exporters. Directions are given by authorised officers. The failure to comply with a direction is an offence.
Order 8.11
This order allows for authorised officers to give directions to exporters. Directions cannot be given in respect of establishments at which the preparation of wild game meat or wild game meat products are carried out; directions can only be given to exporters.
A direction may be given if the authorised officer has reasonable grounds to believe that wild game meat or wild game meat products for export are not wholesome, have deteriorated, are not eligible for export to the relevant market or their integrity is not assured.
A direction may be for the exporter to take any action that the authorised officer considers necessary or appropriate to ensure that one or more of the objectives of the Orders are met.
Suborder 8.11(3) provides a non-exhaustive list of the kinds of directions that may be given. For example, a direction may be for the movement of wild game meat or wild game meat products to a particular place, or for wild game meat or wild game meat products not to be loaded onto a ship or aircraft for export.
A direction does not have to be in writing; it may be given orally. However, if a direction is in writing, it must state that non-compliance with the direction is a criminal offence punishable by up to 50 penalty units.
A direction may be amended or revoked. An amendment to a written direction must be made by notice in writing to the exporter concerned.
Order 8.12
This order makes it an offence to fail to comply with a direction given under order 8.11. The maximum penalty for the offence is 50 penalty units. An offence will be committed whether the direction was given in writing or orally.
Part 9 – Alternative regulatory arrangements
This Part allows for a requirement in orders 3.05 to 3.08 to be deemed to be satisfied in two circumstances. The first circumstance is where an establishment’s approved arrangement contains alternative procedures, standards or requirements to achieve the purpose of the relevant requirement. The second circumstance is where the importing country does not require compliance with the relevant requirement. In both circumstances, the occupier of the establishment must obtain a written notice from the Secretary.
Order 9.01
This order deals with the first circumstance: where an establishment’s approved arrangement contains alternative procedures, standards or requirements to achieve the purpose of a requirement of orders 3.05 to 3.08.
The occupier may apply in writing to the Secretary for a notice. If the Secretary is satisfied that the alternative procedure, standard or requirement in the approved arrangement achieves the purpose of the requirement of the Orders, the Secretary may give the occupier a written notice.
While a notice is in effect, compliance with the specified alternative procedure, standard or requirement of the approved arrangement is deemed to be compliance with the relevant provision of the Orders.
A notice has effect from the day it is given to the occupier, unless the notice specifies a later day as the day it takes effect. A notice may be varied or revoked.
Order 9.02
This order deals with the second circumstance: where the relevant importing country authority does not require compliance with a requirement in orders 3.05 to 3.08.
The occupier may apply in writing to the Secretary for a notice. If the Secretary is satisfied that the relevant importing country authority does not require compliance with a requirement in orders 3.05 to 3.08, the Secretary may give the occupier a written notice.
A written notice may also be applied for and given where a relevant importing country requirement differs from a requirement of orders 3.05 to 3.08 and compliance with the importing country requirement would result in non-compliance with the Orders. In this case, if the approved arrangement for the establishment contains controls that achieve the importing country requirement, the Secretary may give the occupier a written notice.
While a notice is in effect, the requirement of order 3.05 to 3.08 specified in the notice does not apply to the wild game meat or wild game meat products.
A notice has effect from the day it is given to the occupier, unless the notice specifies a later day as the day it takes effect. A notice may be varied or revoked.
Part 10 – Miscellaneous
Division 10.1 – Reconsideration and review of Secretary’s decisions
This Division sets out the framework for merits review of certain decisions made under the Orders. Generally, decisions under the Orders are subject to reconsideration by the Secretary. Following reconsideration by the Secretary, a person may apply to the Administrative Appeals Tribunal (‘AAT’) for further review.
The merits review provisions are available for “initial decisions” within the meaning of order 10.01. The following decisions are excluded from the definition of initial decision:
· a decision upon an application for an exemption from the Orders under Part 2.5;
· a decision upon an application for a notice under Part 9 relating to the deemed satisfaction of provisions of the Orders because of an approved arrangement or importing country requirement;
· a decision relating to an export permit or government certificate.
Accordingly, there is no merits review available for the above decisions.
Also, the definition of initial decision only extends to decisions made by the Secretary or a delegate of the Secretary. Accordingly, Division 10.1 does not apply to decisions made by other officers (eg authorised officers).
Order 10.01
This order defines terms used in Division 10.1.
Order 10.02
This order allows for a person to seek reconsideration by the Secretary of an initial decision under the Orders. An application for reconsideration must be made in writing, set out the reasons for the application, and be given to the Secretary within 28 days after the person receives notice of the initial decision (or such further period as the Secretary allows).
Order 10.03
This order requires the Secretary to reconsider a decision following an application under order 10.02. Upon reconsideration, the Secretary may make any decision that may have been made at first instance (i.e. the Secretary is to step into the shoes of the original decision maker).
If a decision is not made within 30 days after an application for reconsideration, the decision is deemed to have been re-made. This provision allows for applicants to seek further review to the AAT if a reconsideration decision is not made in a timely manner.
Order 10.04
This order provides that when a decision is made upon reconsideration under order 10.03, the initial decision that was subject to the reconsideration ceases to have effect.
Order 10.05
This order requires notice of a decision upon reconsideration to be given within 30 days after the application for reconsideration. A notice of decision must give reasons for the decision and include a statement that further review may be sought to the AAT.
Order 10.06
This order allows for applications to be made to the AAT for the review of a reconsideration decision by the Secretary.
AAT review is only triggered by a reconsideration decision. Review by the AAT is not available for initial decisions that have not been subject to reconsideration, or for decisions under the Orders that are excluded from the definition of initial decision in order 10.01.
Division 10.2 – Documentary requirements
This Division contains various documentation and record-keeping requirements.
Order 10.07
This order requires the occupier of a registered establishment to keep a complete copy of the approved arrangement for the establishment. Copies of variations to approved arrangements must also be kept.
Suborder 10.07(2) obliges the occupier to ensure that the copy of the approved arrangement and its variations be authenticated by the Secretary. Suborder 10.07(3) requires that copies be held in conditions of security so that they cannot be altered.
A failure to comply with any of the above requirements is an offence punishable by up to 50 penalty units.
Suborder 10.07(4) provides that an authenticated copy of an approved arrangement (and any variations to the arrangement) are prima facie evidence of the content of the approved arrangement.
Order 10.08
This order is a general provision requiring that all records made under the Orders be accurate, legible, auditable, dated, in English, and signed by the maker of the record.
Order 10.09
This order is a general provision allowing a person to keep a copy of a document rather than the original document even if the Orders require the person to keep the original document. This can be done if the person is required to provide the original to another person under a law of the Commonwealth or of a State or Territory, or gives the original in accordance with ordinary commercial practice.
If this order applies, the person must retain the copy of the document for the same period of time for which the person was required to retain the original document.
Order 10.10
This order precludes the alteration or defacement of a document required to be kept by a person under the Orders. However, notations or markings in accordance with ordinary commercial practice are permissible.
If a document is altered or defaced, the person who is required to keep the document must also keep the documents that show how the document was altered or defaced. These documents must be kept for the same period as the original document is required to be kept.
Order 10.11
This order requires the translation of trade descriptions of wild game meat and wild game meat products that are not in English. If a trade description (or part thereof) is not in English, an English translation must be made available by the occupier of the establishment where the description was applied, the occupier of the establishment at which the wild game meat or wild game meat products are located, and the exporter.
A translation must be prepared by an appropriately qualified person who is independent of all of the persons who are required to make the translation available. In other words, the translator must be independent of the occupier (or occupiers) and the exporter.
Under suborder 10.11(4), an authorised officer must require the provision of a translation by any of the persons who are required by the order to have the translation available. The requirement must be given by notice in writing and state that non-compliance with the requirement is a criminal offence punishable by 10 penalty units. Under suborder 10.11(6), the failure to comply with a requirement to provide a translation is a criminal offence.
Division 10.3 – Giving notices etc
Order 10.12
This is an order of general application. The order deems a notice to be given to an occupier or exporter if the notice is given to the occupier or exporter, or a person who is in charge or apparently in charge at the occupier’s establishment or the exporter’s premises. This provision enables notices to be given under the Orders without the need to give the notice to the occupier or the exporter directly.
Division 10.4 – Transitional
This Division contains transitional arrangements for the commencement of the Orders.
Order 10.13
This order provides that the registration of an establishment under section 4.04 of the PGGOs continues to have effect under these Orders after the commencement of these Orders. The order will deem the registration to be in effect as if it had been made under Schedule 1 (accordingly, Schedule 1 will apply to the transitional registration, and the registration can be suspended or revoked under that Schedule).
A registration that was suspended under Division 4.7 of the PGGOs will continue to be suspended after the commencement of these Orders as if it had been suspended under Schedule 1.
An undertaking accepted by the Secretary under paragraph 4.06(2)(b) of the PGGOs to pay an amount to the Commonwealth to satisfy a liability will continue to have effect after the commencement of these Orders as if the undertaking had been accepted by the Secretary under paragraph 32.2(b) of Schedule 1.
Order 10.14
This order saves export permits that had been issued for wild game meat or wild game meat products under section 6.02 of the PGGOs prior to the commencement of the Orders. An export permit will be saved as if it had been given under clause 6 or 7 of Schedule 8 to the Orders. An export permit will be saved for as long as it was in force under the PGGOs, unless it ceases to have effect under the Orders on an earlier date.
Order 10.15
This order saves the allocation of authorised officers to wild game meat establishments and wild game meat product establishments made prior to the commencement of the Orders. From the commencement of the Orders, a saved allocation will be taken to be an allocation under Schedule 10.
Schedule 1 – Registration and approved arrangements
This Schedule sets out how an establishment is to be registered and an approved arrangement is to be approved. The preparation of wild game meat and wild game meat products must be carried out at a registered establishment for which there is an approved arrangement in effect: see Parts 3 and 4.
The registration of an establishment and the approval of an arrangement are generally applied for and granted together.
The minimum content of an approved arrangement is prescribed by clause 11 of Schedule 2.
Part 1 – Registration and approval of arrangement
Division 1.1 – Application and Secretary’s decision
Clause 1
This clause provides for the occupier of an establishment to apply to the Secretary for both the registration of the establishment and the approval of an arrangement for the operations at the establishment.
An application must be made on an approved form and contain the information specified in the form as well as the information set out in clause 2.
Clause 2
This clause specifies the information that must be contained in an application for the registration of an establishment and the approval of an arrangement. The application must contain the applicant’s name and business address in Australia, as well as the names and addresses of any partners (if the applicant is a partnership) and the names and addresses of the persons who are to manage or control the operations.
Additionally, the application must contain information about any serious offence of which the applicant or the persons who are to manage or control the operations have been convicted. However, this requirement is subject to the spent convictions provisions in Part VIIC of the Crimes Act 1914.
The application must also contain information about the location and boundaries of the establishment.
An application must also be accompanied by an arrangement for the preparation to be undertaken by the establishment. Alternatively, the arrangement can be made available for evaluation by the Secretary.
Clause 3
This clause provides for how an application for the registration of an establishment and the approval of an arrangement is to be assessed.
The Secretary may evaluate a proposed arrangement in a desk audit (i.e. evaluation on the papers). The Secretary may also take into account any guidelines issued to assist the development of approved arrangements.
The Secretary also has powers under subclause 3.2 to request the applicant provide further assistance: the test for exercising this power is whether the Secretary reasonably requires the assistance. The assistance that may be required is further information or documents, consent to inspection of premises, facilities, equipment, vehicles and essential services, demonstration of the operations and procedures to be followed at the establishment, and consent to the use of a qualified person paid by the applicant in an inspection, evaluation or demonstration.
Clause 4
This clause requires the Secretary to decide an application for the registration of an establishment and the approval of an arrangement within 60 days of receiving the application.
If a decision is not made within 60 days after an application, the application is deemed to have been refused. This provision allows for applicants to seek reconsideration under Division 10.1 if a decision is not made in a timely manner.
Clause 5
This clause sets the grounds on which establishments are registered and arrangements are approved.
There are five grounds that must be satisfied.
First, the Secretary must be satisfied that operations at the establishment will be conducted in a way that ensures that the requirements of the Act and the Orders are met.
Second, the Secretary must be satisfied that certain persons pass the “fit and proper person” test. The matters to be taken into account in applying that test are set out in section 4.05 of the PGGOs. The persons who must be fit and proper persons are the persons in whose name the establishment is to be registered, the persons who are to manage or control the operations, and in the case of a partnership, each partner.
Third, all amounts payable to the Department in respect of the establishment must have been paid. This includes fees payable under the Export Control (Fees) Orders 2001, including fees for the establishment in respect of which a person other than the applicant is liable. Note that under subclause 32.2, undertakings may be entered into for an outstanding amount that deems the amount to have been paid.
Fourth, the Secretary must be satisfied that the proposed arrangement meets the requirements of clauses 11 and 12 of Schedule 2. The requirements of clauses 11 and 12 relate to the content of approved arrangements. Amongst other things, an arrangement must make provision for each stage of production at the establishment, identify applicable importing country requirements, and document the system of controls to ensure that the requirements or orders 3.05 to 3.08 and importing requirements are met. An arrangement must also provide for the implementation of a HACCP plan.
Fifth, the Secretary must be satisfied that compliance with the controls specified in the arrangement will ensure that the requirements of the Act and orders 3.05 to 3.09 are met and that there is a sound basis for issuing export permits and government certificates for wild game meat and wild game meat products prepared at the establishment.
If each of the above requirements is satisfied, the registration of the establishment and the approval of the arrangement are mandatory. The registration is effected by issuing a certificate of registration to the applicant. The approval of the arrangement is effected by giving the applicant a written notice.
Clause 6
This clause requires written notice of a decision not to register an establishment and approve an arrangement. The notice must state the reason for the decision and inform the applicant of his or her rights of review under Division 10.1.
Clause 7
This clause requires a registration number to be given for an establishment upon its registration.
Clause 8
This clause requires the prominent display of an establishment’s certificate of registration. The certificate must be displayed by the occupier at the establishment. A breach of this clause is a level 1 penal provision (punishable by a fine of up to 10 penalty units).
Division 1.2 – Conditions and notification
Clause 9
This clause allows for an establishment to be registered subject to conditions. The conditions are to be specified in the certificate of registration.
A condition must be for the purposes of ensuring that one or more of the objectives of the Orders are met.
A condition may be varied or revoked, by written notice to the occupier of the establishment.
Clause 10
This clause provides for a statutory condition on the registration of an establishment. If an undertaking has been given for the payment of a debt under clause 32, a mandatory condition of the registration of the establishment is that the undertaking is complied with.
A failure to comply with an undertaking may result in the suspension or revocation of the registration: see clause 19.
Clause 11
This clause allows for an arrangement to be approved subject to conditions. This clause reflects clause 9, regarding the registration of an establishment subject to conditions.
Clause 12
This clause requires the occupier of an establishment to notify the Secretary of certain matters. The matters requiring notification are:
· if the occupier ceases to occupy the establishment (section 4.14 of the PGGOs);
· if there is a change in the management or control of operations at the establishment, or if the occupier is a partnership, the members of the partnership (section 4.16 of the PGGOs);
· if the occupier (or a related person) is convicted of a serious offence, becomes bankrupt, etc (section 4.18 of the PGGOs);
· if the occupier’s business address changes (section 4.19 of the PGGOs).
Part 2 – Variation of registration and approved arrangements
This Part allows for the registration of an establishment or an approved arrangement to be varied.
Division 2.1 – Variation of registration
This Division deals with the variation of the registration of an establishment.
Clause 13
This clause allows the occupier of an establishment to apply for a variation of the registration of the establishment. A variation can be made for two purposes: first, to change the operations for which the establishment is registered; or secondly, to change the kinds of wild game meat or wild game meat products for which the establishment is registered.
If a variation is approved by the Secretary, the variation is effected by giving a new certificate of registration to the occupier.
If a variation is not approved, the Secretary must notify the occupier in writing of the refusal and the reasons for the refusal. A decision not to approve a variation is subject to merits review under Part 10 of the Orders. If an application for a variation remains undecided after 30 days, it is deemed to have been refused and merits review can be sought.
Division 2.2 – Variation of approved arrangements
This Division deals with the variation of approved arrangements.
Clause 14
This clause allows for the unilateral variation of an approved arrangement by the occupier of the relevant establishment. Any variation must be recorded; a failure to do so is punishable by up to 20 penalty units.
However, clause 15 operates as an exception to the general rule in clause 14, requiring some variations to be approved by the Secretary.
Clause 15
This clause requires certain variations to be approved by the Secretary. For these variations, unilateral action by the occupier of the establishment is not permitted.
Subclauses 15.1 and 15.2 set out the variations that require the Secretary’s approval. The two principal variations are those that have the potential to adversely affect compliance with the requirements of the Act and the Orders, and those that have the potential to adversely affect the wholesomeness or integrity of wild game meat or wild game meat products prepared at the establishment. A third variation that requires approval is a variation that adversely affects the ability to make an accurate assessment whether there is compliance with the Act or the Orders or the wholesomeness or integrity of wild game meat or wild game meat products prepared at the establishment.
The opening words of subclause 15.1 make it clear that a variation requires approval if it achieves the relevant outcome either by itself or in combination with other variations.
A failure to seek and obtain approval for the variations set out in subclause 15.1 is an offence punishable by up to 50 penalty units.
Subclause 15.2 deems certain variations to come within 15.1: these variations therefore require approval by the Secretary. There are two deemed variations: first, a variation that identifies a person who manages or controls operations at the establishment or that person’s functions; and secondly, a variation that relates to alternative procedures, controls, standards or requirements for the purposes of meeting requirements of the Orders or importing country requirements.
A refusal of a variation upon an application under clause 15 is subject to merits review under Part 10. A refusal must be notified to the occupier in writing, and reasons must be stated in the notice. A failure to make a decision within 30 days is deemed to be a refusal of the variation, enabling the occupier to seek a merits review.
A variation can be approved subject to conditions. If a condition is not satisfied by the occupier, the variation will not have effect.
Clause 16
Clause 16 enables the Secretary to require a variation to an approved arrangement. The procedure for action under clause 16 is as follows:
· The Secretary notifies the occupier (in writing) requiring the occupier to submit a variation to the approved arrangement. The notice describes the variation required and states the time within which the variation must be submitted.
· The occupier must then submit an application for approval of the variation under clause 15 (this is the effect of subclause 16.4).
· The Secretary then decides the application for approval of the variation.
The Secretary’s power to require a variation under clause 16 is limited to four circumstances listed in subclause 16.1. Each of those circumstances depends on the Secretary’s subjective consideration or satisfaction of particular circumstances rather than the objective existence of those circumstances.
Clause 17
This clause facilitates the operation of variations to approved arrangements by providing that a variation to an approved arrangement is included in the approved arrangement. This means that, for example, compliance with an approved arrangement requires compliance with any variations to the approved arrangement.
Part 3 – Suspension and revocation
This Part allows for the suspension and revocation of the registration of an establishment or the approval of an arrangement.
If a registration or approval is suspended or revoked, wild game meat and wild game meat products for export for food may not be prepared at the establishment (orders 3.01 and 3.02), and wild game meat and wild game meat products prepared at the establishment may not be exported (orders 4.08 and 4.09).
Division 3.1 – Suspension and revocation of registration
This Division deals with the suspension and revocation of the registration of an establishment.
Clause 18
This clause allows the Secretary to suspend or revoke the registration of an establishment. Suspension and revocation have different consequences (see Division 3.3).
There are five grounds on which registration may be suspended or revoked. The grounds are alternative (only one needs to be satisfied). The first four grounds depend on the Secretary having reasonable grounds to believe that a particular circumstance exists. The fifth ground depends on the actual existence of the circumstance.
The first ground is where the occupier or a person who manages or controls operations at the establishment is not a fit and proper person. Whether a person is a fit and proper person requires consideration of the factors set out in section 4.05 of the PGGOs. In the case of a corporation, the question is whether the corporation is a fit and proper person; in the case of a partnership, the question is whether any member of the partnership is not a fit and proper person. If the occupier is a corporation or a partnership, each of the individuals who manages and controls operations at the establishment must also satisfy the fit and proper person test.
The second ground is where a condition of the establishment’s registration has not been complied with. For this ground, an undertaking to repay an amount to the Commonwealth is not a relevant condition.
The third ground is where a person referred to in the first ground (i.e. persons who must be fit and proper persons) has made a statement that is false or misleading or for which there is no sound basis. The statement must be made in the application for registration or in information given to the Secretary in relation to the registration or a condition of the registration.
The fourth ground is where the occupier has not made available a document to an authorised officer that the occupier is required by or under the Orders to keep. For example, clause 7 of Schedule 2 requires occupiers to retain certain documents. A failure to comply with this provision could render the registration of the establishment liable to suspension or revocation.
The fifth ground is where the occupier of the establishment, or a person who manages or controls operations at the establishment, is convicted of a serious offence (serious offence is defined by order 1.10). This ground does not depend on the Secretary’s reasonable belief. A serious offence must have actually been committed for a suspension or revocation on this ground.
Partial revocation or suspension is permitted under clause 18. A notice of revocation or suspension must state whether the revocation or suspension is of the whole of the registration or to a specified extent.
A suspension or revocation has effect from the day it is notified or, if specified in the notice, a later day.
Subclause 18.5 makes it clear that if a registration is suspended, it may be revoked while it is suspended.
Clause 19
This clause contains specific powers for suspension and revocation of the registration of an establishment for the non-payment of debts.
The procedure for suspension and revocation under clause 19 is as follows:
· An amount payable to the Department is unpaid for at least 30 days.
· The Secretary may then issue a notice to the occupier of the relevant establishment stating that the amount is due for payment (clause 31).
· If, after 8 days since the notice of payment due is issued, the amount due is not repaid or the occupier has not entered into an arrangement for repayment, the Secretary may suspend the registration of the establishment.
· If, after 90 days since the notice of suspension is issued, the amount due is still not repaid, the Secretary may revoke the registration of the establishment. If the notice of suspension is posted, the 90 days runs from the third working day after it was posted (the notice is deemed to be received on that day).
Revocation and suspension under clause 19 takes effect from the day the notice of revocation or suspension is given (or, if specified in the notice, from a later day).
A notice of suspension or revocation of the registration of an establishment must also state that the approved arrangement for the establishment may also be suspended or revoked.
Subclause 19.6 makes it clear that the specific power to suspend or revoke under clause 19 is separate to the general power to suspend or revoke under clause 18 (eg either or both powers may be exercised if both provisions apply).
Division 3.2 – Suspension and revocation of approved arrangements
This Division deals with the suspension and revocation of approved arrangements.
Clause 20
This clause allows the Secretary to suspend or revoke the approval of an arrangement for operations for the preparation of wild game meat or wild game meat products. Suspension and revocation have different consequences (see Division 3.3).
There are seven grounds on which approval may be suspended or revoked. The grounds are alternative (only one needs to be satisfied). All grounds depend on the Secretary having reasonable grounds to believe that a particular circumstance exists, rather than the actual existence of the circumstance.
The first ground is that the occupier has failed to comply with a statutory requirement (of the Act or the Orders) or a requirement of the approved arrangement or a condition of approval of the approved arrangement.
The second ground is that compliance with the controls in the arrangement is unreliable, or is not effective, to ensure that the requirements of the Act and orders 3.05 to 3.09 are met and that there is a sound basis for issuing export permits and government certificates for wild game meat and wild game meat products prepared at the establishment
The third ground is that the occupier of the establishment ceases operations for the preparation of wild game meat or wild game meat products for a period of at least 12 months.
The fourth ground is that the occupier or a person who manages or controls operations at the establishment has made a statement that is false or misleading or for which there is no sound basis. The statement must be made in the course of giving information to the Secretary under the Act, the Orders or the approved arrangement.
The fifth ground is that the occupier has not made available a document to an authorised officer that the occupier is required to keep by the Act, the Orders or the approved arrangement. For example, clause 7 of Schedule 2 requires occupiers to retain certain documents. A failure to comply with clause 7 of Schedule 2 could render an approved arrangement liable to suspension or revocation.
The sixth ground is that the occupier fails to give consent to an auditor or authorised officer to access the establishment for the performance of an audit or other function. This ground will also apply if the required assistance is not provided to the authorised officer or auditor in carrying out their duties (see orders 6.06 and 8.09).
The seventh ground is that an authorised officer is prevented from exercising his or her powers or functions at the establishment because of force, obstruction or intimidation.
A suspension or revocation has effect from the day it is notified or, if specified in the notice, a later day.
Subclause 20.2 makes it clear that an approved arrangement may be revoked while it is suspended.
Division 3.3 – General rules applying to suspensions and revocations
This Division provides for rules that govern suspensions and revocations under Divisions 3.1 and 3.2 of the registration of establishments and approved arrangements.
This Division also provides for the registration of establishments and approval of arrangements to terminate, lapse or cease to have effect.
Clause 21
This clause allows for partial suspensions and revocations. A partial suspension or revocation may relate to specified wild game meat or wild game meat products prepared at the establishment, or a specified stage of production at the establishment. If a suspension or revocation is to be partial, the nature of the partial suspension or revocation must be specified in the notice of suspension or revocation.
Clause 22
This clause requires written notice of a suspension or revocation. The notice must include reasons for the suspension or revocation and advise the occupier that merits review may be sought (see Part 10). In the case of suspension, the notice must state the period of the suspension.
Clause 23
Where the registration of an establishment or the approval of an arrangement has been suspended, clause 23 allows for the suspension to be revoked. The only ground for revocation is if the ground for suspension no longer exists. A revocation is discretionary: even if the ground for the original suspension no longer exists, the Secretary retains the discretion to revoke or not revoke the suspension.
Clause 23 has a corresponding clause for re-instatement after revocation: see clause 29.
Clause 24
This clause allows for the unilateral termination of the registration of an establishment or an approved arrangement for an establishment by the occupier. A termination is effected by the occupier giving written notice to the Secretary.
If the registration of an establishment is terminated, the approved arrangement for the establishment is also terminated, but not vice versa.
Subclause 24.2 permits partial termination. A partial termination may be for specified wild game meat or wild game meat products prepared at the establishment or a specified stage of production. For a partial termination, the scope of the termination must be detailed in the notice of termination to the Secretary.
A termination takes effect seven days after the notice of termination is given to the Secretary or, if specified in the notice, a later day.
Clause 25
This clause provides for the automatic lapsing of the registration of an establishment or the approval of an arrangement. The only ground for lapsing is that the person in whose name the establishment is registered ceases to be the person who carries on operations to prepare wild game meat or wild game meat products at the establishment. A lapse takes effect after seven days from the person ceasing to carry on the operations or, if the person notified the Secretary of the cessation earlier, from that earlier day.
Clause 26
This clause sets out when the registration of an establishment ceases to have effect because of its revocation, termination or lapse. The registration ceases to have effect on the day of the revocation, termination or lapse.
If an approved arrangement ceases to have effect, the registration of the relevant establishment ceases to have effect 12 months later.
Subclause 26.3 provides that the suspension of registration means that the registration has no effect during the suspension. However, the occupier must still comply with the Orders as if the registration had not been suspended.
The rules in clause 26 mean that if the registration of an establishment has been revoked, terminated or suspended, or has lapsed, it has no effect. The consequence is that wild game meat and wild game meat products for export for food cannot be prepared at the establishment (order 3.01) and wild game meat and wild game meat products prepared at the establishment cannot be exported for food (order 4.08).
Clause 27
This clause sets out when an approved arrangement ceases to have effect because of its revocation, termination or lapse. The approval ceases to have effect on the day of the revocation, termination or lapse.
Subclauses 27.3 and 27.4 provide that the suspension of an approved arrangement means that the approval has no effect during the suspension. However, the occupier must still comply with the requirements of the Orders as if the approval was not suspended.
The rules in clause 27 mean that if the approval of an arrangement has been revoked, terminated or suspended, or has lapsed, it has no effect. The consequence is that wild game meat and wild game meat products for export for food cannot be prepared at the establishment (order 3.02) and wild game meat and wild game meat products prepared at the establishment cannot be exported for food (order 4.09).
Clause 28
This clause obliges the Secretary to issue a new certificate of registration if the registration of an establishment is terminated or revoked, or lapses, in part.
Also, if a registration is reinstated under clause 29 (whether in full or in part), a new certificate must be issued.
Clause 29
This clause allows for the revoked registration of an establishment or approval of an arrangement to be reinstated if the original ground for revocation no longer exists. This is the only basis on which reinstatement may occur; otherwise, the occupier must re-apply for registration and approval of an arrangement.
Even if the original ground for revocation no longer exists, reinstatement is within the discretion of the Secretary. The Secretary retains a discretion not to reinstate.
Clause 30
This clause allows the Secretary to require an occupier to take action if the registration of the occupier’s establishment or the approval of the arrangement for the establishment ceases to have effect.
The action required to be taken may relate to carcases, carcase parts, wild game meat, wild game meat products, things used in preparing wild game meat or wild game meat products, official marks, export permits and government certificates. The purpose of requiring the action to be taken must be to ensure that the objectives of the Orders are met (eg wild game meat might be recalled to preserve the integrity of wild game meat for export for food).
The requirement to take action must be given by notice in writing. A failure to comply with the requirement is an offence punishable by up to 50 penalty units.
Part 4 – Payment of debts
Clause 31
This clause enables the Secretary to issue a notice of payment due if an amount payable to the Department in respect of a registered establishment (eg a fee under the Export Control (Fees) Orders 2001) remains unpaid 30 days after the amount became due for payment.
A failure to subsequently repay the outstanding amount may result in the suspension and subsequent revocation of the registration of the establishment: see clause 19.
Clause 32
This clause allows for outstanding amounts payable to the Department (eg fees under the Export Control (Fees) Orders 2001) to be repaid pursuant to undertakings between the occupier and the Department.
An undertaking may be made when an application for the registration of an establishment is made (an undertaking may not be made in respect of an establishment that is currently registered).
The undertaking may provide for the payment of the outstanding amount on terms agreed by the Secretary (eg payment by instalments). If the undertaking is accepted by the Secretary, the amount payable is deemed to have been repaid for the purposes of registering the establishment. Compliance with the undertaking then becomes a condition of registration: see clause 10. The undertaking must provide that the payment of an amount under the undertaking reduces the amount outstanding by a corresponding amount.
In deciding whether to accept an undertaking, the Secretary must take into account matters such as the financial position of the occupier and the likelihood of repayment.
An undertaking may be varied by agreement by the occupier and the Secretary, but not so as to reduce the occupier’s liability to repay the outstanding amount.
Clause 33
This clause provides that an amount outstanding under an undertaking is a recoverable debt.
Clause 34
This clause ensures that where a payment is made under an undertaking, the amount outstanding is reduced accordingly. If an undertaking relates to multiple amounts outstanding, the Secretary has the power to decide the order in which the repayments are applied to reduce the outstanding amounts.
Clause 35
This clause requires that if a repayment under an undertaking exceeds the relevant amount outstanding, the excess must be refunded.
Clause 36
This clause makes it clear that where an undertaking is made to repay an amount outstanding, the undertaking has no effect on the liability to repay the amount outstanding. An undertaking only serves a limited purpose: to deem an amount to be repaid where an occupier seeks the registration of an establishment. The underlying liability for the outstanding amount is not affected unless the amount is repaid under the undertaking.
Schedule 2 – Management of the preparation of wild game
This Schedule imposes requirements on an occupier to comply with certain management practices at the occupier’s establishment. The Schedule is called up by order 3.03.
A failure to comply with a requirement of Schedule 2 (other than clause 7) is not an offence. However, a failure to comply with a requirement of Schedule 2 may result in the occupier’s approved arrangement being suspended or revoked (see paragraph 20.1(a) of Schedule 1).
Part 1 – Management
Division 1.1 – General requirements
Clause 1
This clause requires an occupier to document his or her commitment to the objectives of the Orders, and compliance with the applicable requirements of the Act and the Orders.
Clause 2
This clause imposes general obligations for the management of an establishment. Management practices, organisational structure, resources, personnel and training must be appropriate to ensure the applicable requirements of the Act and the Orders are complied with, and must be documented.
Division 1.2 – Verification, corrective action, review and record keeping
Clause 3
This clause obliges an occupier to verify compliance with the requirements of the Act and orders 3.03 to 3.09 at the establishment. The occupier must make a written record of verifications, including the methods, procedures, tests, monitoring and other evaluations used and the results of the verifications.
Clause 4
The object of this clause is to impose ongoing obligations on occupiers to take corrective action to address breaches and anticipated breaches of statutory requirements at establishments.
Clause 4 requires corrective action to be taken by an occupier if a requirement of the Act or the orders 3.03 to 3.09 is not complied with. Corrective action must both address the non-compliance and ensure the non-compliance does not recur. There is a further obligation on occupiers to assess the effectiveness of corrective action taken under clause 4.
Corrective action must also be taken if non-compliance is anticipated. If a requirement of the Act or the Orders is likely to be breached, the occupier must take action to address the risk of the breach. The action must be as much as is reasonably practicable to address the breach. There is a further obligation on an occupier to assess the effectiveness of corrective action for an anticipated breach.
Subclause 4.3 requires that corrective action, and the assessment of its effectiveness, be documented in a written record.
Clause 5
This clause imposes ongoing obligations on occupiers to conduct both internal audits and management reviews at establishments. The purpose of an internal audit or management review is to assess the effectiveness of the management practices at the establishment in meeting the applicable requirements of the Act and orders 3.03 to 3.09.
If less than three people are employed at an establishment, internal audits are not required (subclause 5.3). Management reviews will be sufficient for compliance with clause 5.
Subclause 5.2 requires written records to be made of all internal audits and management reviews conducted. A record must contain the date of the audit or review, the results of the audit or review, any decision to take action as a result of the audit or review, any action taken and the outcome of the action taken. This record-keeping requirement ensures that an establishment can be effectively audited by an approved auditor to determine whether the establishment has conducted sufficient internal audits and management review.
Clause 6
Subclause 6.1 imposes a general obligation on an occupier to maintain inventory controls at an establishment. The nature of the inventory controls are, subject to subclause 6.2, within the discretion of the occupier, but the controls must be objectively necessary to ensure that compliance with the Act and orders 3.03 to 3.09 can be verified.
Subclause 6.2 sets out a non-exhaustive list of the inventory controls that are required by subclause 6.1. The controls generally relate to records of carcases, wild game meat and wild game meat products that arrive at, are prepared at, or are transferred from, an establishment and reconciliations of those matters.
Clause 7
This clause imposes a general requirement on occupiers to maintain records for at least two years. The records required to be maintained are records relevant to whether there is compliance with the applicable requirements of the Act, the Orders or the occupier’s approved arrangement.
A breach of clause 7 is an offence punishable by up to 50 penalty units. Also, a breach of clause 7 can be a ground for the suspension or revocation of the occupier’s approved arrangement.
Division 1.3 – Surveillance, sampling and monitoring programs and notifiable diseases
Clause 8
This clause requires compliance with the Australian Wild Game Meat Standard in surveillance, sampling and monitoring. Clauses 3.12 and 3.13 of that Standard requires compliance with surveillance, sampling and monitoring programs endorsed by the relevant council of Commonwealth and State/Territory ministers or required by the relevant State or Territory controlling authority. The Standard also requires an establishment to record the surveillance, monitoring and sampling conducted and the results of the surveillance, monitoring or sampling.
Clause 9
This clause calls up the Australian Wild Game Meat Standard, requiring it to be complied with in respect of notifiable diseases. Two requirements in the Standard are called up.
First, the occupier of an establishment must advise the relevant controlling authority if a wild game animal is suspected of being affected by a notifiable disease or if a carcase or carcase part displays evidence of a wild game animal being affected by a notifiable disease: see clause 3.14 of the Standard.
Secondly, an establishment must have a system in place to control the spread of a notifiable disease. The system must be for the harvesting of wild game animals, the handling of carcases and carcase parts and other measures including trace-back: see clause 3.15 of the Standard.
A notifiable disease is defined by suborder 1.10 to mean a disease that is required to be notified by applicable State or Territory law.
Division 1.4 – Notifications
Clause 10
This clause imposes an ongoing obligation on occupiers to notify an authorised officer if certain adverse circumstances arise. Notification must be as soon as practicable after the occupier has reasonable grounds to believe that a notifiable circumstance has occurred. The phrase “reasonable grounds to believe” is intended to ensure that an occupier is required to notify if the occupier should believe that a circumstance has occurred, regardless of whether the occupier actually believes that the circumstance has occurred (that is, an objective rather than a subjective test).
There are four circumstances in which notification is required.
The first circumstance is where wild game meat or wild game meat products at the establishment are unwholesome, have deteriorated or where their identity is compromised or their integrity is not assured.
The second circumstance is where something occurs at an establishment (eg a procedure fails) that compromises or could compromise the wholesomeness or integrity of wild game meat or wild game meat products or causes or could cause them to deteriorate.
The third circumstance is where wild game meat or wild game meat products arrive at an establishment without the required consignment information prescribed by clause 8 of Schedule 7. If no information is received, or inaccurate or incomplete information is received, the occupier who should have received the information must notify an authorised officer.
The fourth circumstance is where wild game meat or wild game meat products do not meet the applicable importing country requirements.
Part 2 – Approved arrangements
Clause 11
This clause imposes minimum requirements for the content of an approved arrangement. This clause must be read with Schedule 1 which provides for approved arrangements.
There are five minimum requirements for an approved arrangement.
First, an approved arrangement must cover each stage of the production of wild game meat and wild game meat products undertaken at the establishment (paragraph (a)).
Secondly, the approved arrangement must document the controls used at the establishment to ensure compliance with the requirements of orders 3.05 to 3.08 (requirements relating to the preparation of wild game meat and wild game meat products) (paragraph (b)).
Thirdly, the approved arrangement must document controls necessary to ensure there is a sound basis for issuing export permits and government certificates for wild game meat and wild game meat products prepared at the establishment (paragraph (e)).
The fourth and fifth requirements (paragraphs (c) and (d)) only apply if a relevant importing country requirement cannot be satisfied merely by compliance with the Act and the Orders. For such importing country requirements, the approved arrangement must identify the requirement and document the system of controls used to ensure the requirement is complied with.
Clause 12
This clause imposes a further requirement on approved arrangements. The requirement is that the arrangement provide for the implementation of a HACCP plan for each stage of production at the establishment. A HACCP plan is a system to identify, evaluate and control hazards that are significant for food safety (see order 1.10).
The HACCP plan must comply with the applicable requirements of the Australian Meat Standard or the Australian Wild Game Meat Standard (the applicable requirement will depend on the nature of the preparation undertaken at the establishment: see subclause 12.2).
Schedule 3 – Structural requirements
This Schedule imposes requirements for premises, equipment, facilities and essential services used in the preparation of wild game meat.
The occupier of an establishment is required to comply with Schedule 3 (see order 3.07). An occupier who fails to comply with Schedule 3 may commit an offence under the Act as compliance with Schedule 3 is a condition on the export of wild game meat and wild game meat products (order 4.10). Likewise, an exporter who exports wild game meat and wild game meat products that have not been prepared in accordance with Schedule 3 may commit an offence under the Act.
Clause 1
This clause requires that an establishment provides the premises, equipment, facilities and essential services necessary to ensure that the preparation of wild game meat complies with the Orders.
Clause 2
This clause requires an establishment to have and use measuring devices to accurately assess compliance with the requirements of the Orders.
Clause 3
This clause requires the provision of amenities to authorised officers who are permanently located at an establishment. Subclause 3.1 lists the amenities that must be provided. Subclause 3.2 requires that amenities for authorised officers be separate from amenities for employees of the establishment, be for the exclusive use of authorised officers and be suitable and conveniently located.
Clause 4
This clause imposes additional requirements to clause 3 for offices provided to authorised officers. The requirements of clause 4 are designed to ensure that authorised officers have adequate office facilities to carry out their functions.
Clause 5
This clause requires that equipment and personnel at an establishment do not encroach upon an area used by an authorised officer to conduct post mortem inspections of carcases.
Clause 6
This clause requires that authorised officers be able to access a refrigerated wild game meat examination facility (where the temperature is 10 degrees Celsius or less). The facility does not have to be exclusively for the use of authorised officers, but an authorised officer must be able to use the facility unimpeded.
Clause 7
This clause requires that an establishment at which wild game meat is loaded for export have secure storage facilities for the retention or holding of wild game meat.
Schedule 4 – Operational hygiene
This Schedule imposes operational hygiene requirements that must be complied with in the preparation (other than further processing) of wild game meat for export for food.
The occupier of an establishment is required to comply with Schedule 4 (see order 3.07). An occupier who fails to comply with Schedule 4 may commit an offence under the Act as compliance with Schedule 4 is a condition on the export of wild game meat (order 4.12). Likewise, an exporter who exports wild game meat that has not been prepared in accordance with Schedule 4 may commit an offence under the Act.
Part 1 – Requirements for water
Clause 1
This clause requires that an approved arrangement specify a treatment and testing regime to verify that water is free from suspended matter, harmful substances and pathogenic organisms. Compliance with this requirement (as a requirement of order 3.07) must be verified under clause 3 of Schedule 2.
Part 2 – Animal food and pharmaceutical material
Clause 2
Subclause 2.1 requires compliance with the Australian Wild Game Meat Standard for animal food. For example, the Standard requires that:
· wild game meat for human consumption not be contaminated by animal food (clause 5.3); and
· animal food be segregated from wild game meat for human consumption (clause 13).
Subclause 2.2 contains a separate requirement that animal food be managed in such a way as to ensure that wild game meat and wild game meat products for food not be contaminated. Compliance with this requirement may necessitate the segregation of animal food.
Clause 3
This clause mirrors clause 2 but relates to pharmaceutical material.
Schedule 5 – Preparation and transport
This Schedule imposes preparation and transport requirements for all wild game meat and wild game meat products.
The occupier of an establishment is required to comply with Schedule 5 (see orders 3.07 and 3.08). An occupier who fails to comply with Schedule 5 may commit an offence under the Act as compliance with Schedule 5 is a condition on the export of wild game meat and wild game meat products (orders 4.13 and 4.14). Likewise, an exporter who exports wild game meat or wild game meat products that have not been prepared in accordance with Schedule 5 may commit an offence under the Act.
Part 1 – Sourcing
Clause 1
This clause imposes requirements for the sourcing of wild game meat and wild game meat products. Wild game meat and wild game meat products may only be sourced from a registered establishment, or an establishment for a purpose mentioned in suborder 3.02(2) (eg for transport or loading) that is covered by an arrangement with a State or Territory controlling authority. This requirement is intended to ensure that an occupier only prepares wild game meat and wild game meat products for export for food if sourced from another regulated establishment.
Subclauses 1.3 to 1.5 impose three additional sourcing requirements:
· wild game meat and wild game meat products must not be prepared from offal;
· wild game meat and wild game meat products must not be derived from a species for which the applicable State or Territory law precludes harvest; and
· wild game meat and wild game meat products derived from a porcine (pig) must be of the species sus scrofa scrofa (wild boar).
Part 2 – Preparation and transport
Clause 2
This clause requires dispositions to be applied to wild game animal carcases at the point of post mortem inspection. Only a disposition listed in paragraphs 2(a)-(g) may be applied. The dispositions generally relate to the fitness and condition of a carcase or carcase part (eg whether it is fit for human consumption and export).
Clause 3
This clause imposes requirements on vehicles used to transport wild game meat and wild game meat products. The requirements are designed to ensure that the vehicle is in sufficient condition to avoid contamination of wild game meat and wild game meat products, is refrigerated adequately and is in good working order. Additionally, a vehicle must contain an accurate measuring device and be able to be secured by the DAFFA seal in section 13.11 of the PGGOs.
Part 3 – Loading for export
Clause 4
This clause requires that the loading of wild game meat and wild game meat products for export be done in the presence of an authorised officer or a person designated in an approved arrangement. The loading is under the supervision and direction of that person.
Clause 5
This clause requires that the loading of wild game meat and wild game meat products for export only occur if they are packaged to be protected from contamination and deterioration in their export from Australia.
Subclause 5.2 precludes unwholesome wild game meat or wild game meat products from being loaded for export.
Clause 6
This clause is designed to ensure that wild game meat and wild game meat products are only loaded for export if the area in which they are to be loaded (eg the container system unit) is adequate. Each of the requirements in paragraphs 6(a) to (g) must be satisfied. Generally, the requirements are directed towards ensuring the condition of the wild game meat and wild game meat products (eg keeping them refrigerated and free of contamination).
Clause 6.2 requires that the equipment for loading meet the requirements for the equipment in the Australian Wild Game Meat Standard.
Clause 7
This clause requires that the stowage of wild game meat and wild game meat products during a voyage on a ship or aircraft not adversely affect the condition or packaging of the wild game meat or wild game meat products.
Clause 8
This clause requires that the DAFFA seal in section 13.11 of the PGGOs be applied to container system units in which wild game meat or wild game meat products are exported (except by air).
The seal may only be applied by a person who is permitted to apply the seal (see suborder 7.01(2)).
Schedule 6 – Trade descriptions and official marks
This Schedule requires the application of trade descriptions and official marks to wild game meat and wild game meat products.
The occupier of an establishment is required to comply with Schedule 6 (see orders 3.07 and 3.08). An occupier who fails to comply with Schedule 6 may commit an offence under the Act as compliance with Schedule 6 is a condition on the export of wild game meat and wild game meat products (orders 4.15 and 4.16). Likewise, an exporter who exports wild game meat or wild game meat products that have not been prepared in accordance with Schedule 6 may commit an offence under the Act.
Schedule 6 is designed to ensure that exported wild game meat and wild game meat products contain accurate trade descriptions and the correct official marks.
Part 1 – Trade descriptions
Division 1.1 – Requirement to have trade description
Clause 1
This clause requires that trade descriptions be applied to all wild game meat and wild game meat products for export. A trade description must be applied on or earlier than the day of packaging.
Subclause 1.2 sets out the information that a trade description must contain. The matters in subclause 1.2 generally relate to the description of the wild game meat or wild game meat products, the place of preparation, identification information and ingredients.
Subclause 1.3 ensures that if packaging is carried out on behalf of an occupier, the trade description identifies both the packager and the occupier.
For wild game meat products, subclause 1.4 requires compliance with the Food Standards Code as it relates to the naming of ingredients.
Subclause 1.5 disapplies particular requirements of the Australian Wild Game Meat Standard and the Australian Meat Standard relating to trade descriptions. The requirements of clause 1 are intended to override these requirements.
Clause 2
This clause allows for a trade description to be applied to either end of a carton containing wild game meat or wild game meat products.
Clause 3
This clause requires that the trade description information specifically required for cans (eg the registration number of the establishment, the date the can is closed and the ingredients of the can) may be embossed on the can or indelibly applied to it.
Division 1.2 – General requirements
Clause 4
This clause requires that trade descriptions must be accurate. An inaccurate trade description may not only breach the Orders (and be an offence under the Act) but also be a breach of the Trade Practices Act 1974.
Clause 5
This clause ensures that other information or pictures applied to wild game meat or wild game meat products do not create any inconsistencies with the accurate trade descriptions required by Schedule 6. This requirement ensures that a trade description cannot be undermined or confused by other information.
Clause 6
This clause requires that information on wild game meat or wild game meat products not in English may not be inconsistent with the English trade description. This requirement ensures that a trade description cannot be undermined by contrary information in another language.
Clause 7
This clause ensures that a trade description maintains visibility on the wild game meat or wild game meat products to which it is applied. A trade description must be legible, prominent, conspicuous, unobscured, securely applied and tamper proof.
Clause 8
This clause precludes the alteration or interference with an official mark. An official mark may be altered or interfered with, but only under the approval of the Secretary, or in accordance with an approved arrangement.
Clause 9
This clause defines what is meant by the requirement that a trade description be “applied to” wild game meat and wild game meat products in Schedule 6. The requirement may be satisfied by direct application to the wild game meat or wild game meat products, or by application to an attached label, seal or tag, or covering or packaging.
Part 2 – Official marks
Division 2.1 – Requirement to apply official mark
Clause 10
This clause requires the application of official marks to wild game carcases after being passed for consumption by an authorised officer. A mark must be applied so that it is visible during handling.
Clause 10 can be excluded from application by an approved arrangement for an establishment.
Clause 11
This clause requires that the official mark applied under clause 10 be either the oval “Australia approved” mark in section 13.12 of the PGGOs, or the pentagonal “Australia approved” mark in section 13.16 of the PGGOs.
Clause 12
This clause expands the requirement to apply official marks to cartons in which wild game meat or wild game meat products are packed. The official mark must be the same as the mark permitted by clause 11 (i.e. an “Australia approved” mark) and be applied to the same end of the carton as the trade description required by Part 1 of Schedule 6. The carton mark must also be conspicuous during handling.
Division 2.2 – General requirements
Clause 13
This clause requires that an official mark applied under Division 2.1 be legible and securely applied.
Clause 14
This clause requires the removal or defacing of an official mark in certain circumstances. This clause is designed to ensure that an official mark is not retained in circumstances where its retention would not be appropriate.
A mark applied to wild game meat or wild game meat products must be removed or defaced if the wild game meat or wild game meat products are no longer wholesome or have deteriorated. If the mark is the foreign country identification mark in section 13.06 of the PGGOs, it must be removed or defaced if the circumstances in which the importing country allows the mark to be applied no longer exist.
Subclause 14.2 applies to cartons. An official mark applied to a carton must be removed or defaced if the intention to export the contents of the carton is abandoned or if the carton is no longer to be used for exporting wild game meat or wild game meat products.
Clause 15
This clause prohibits the use of State or Territory classification marks for wild game meat and wild game meat products for export for food.
Schedule 7 – Integrity and transfer
This Schedule imposes requirements that are intended to maintain the integrity of wild game meat and wild game meat products, including by imposing requirements on the information that must be provided in transferring wild game meat and wild game meat products between establishments.
The occupier of an establishment is required to comply with Schedule 7 (see orders 3.07 and 3.08). An occupier who fails to comply with Schedule 7 may commit an offence under the Act as compliance with Schedule 7 is a condition on the export of wild game meat and wild game meat products (order 4.17). Likewise, an exporter who exports wild game meat or wild game meat products that have not been prepared in accordance with Schedule 7 may commit an offence under the Act.
Schedule 7 is designed to ensure that exported wild game meat and wild game meat products contain accurate trade descriptions and the correct official marks.
Part 1 – Integrity
Clause 1
This clause imposes various requirements for the purposes of meeting the objectives of the Orders (eg assuring the integrity of wild game meat and wild game meat products). The requirements relate to carcases, carcase parts, wild game meat and wild game meat products of particular descriptions: these must be identified, segregated from and not be confused with carcases, carcase parts, wild game meat and wild game meat products not meeting the description, and prepared and transported under conditions of security. Further, inventory controls and tracing systems must be maintained.
These requirements are designed to ensure that the integrity of wild game meat and wild game meat products is not compromised.
Clause 2
This clause imposes further requirements to assure the integrity of wild game meat and wild game meat products for export for food.
Wild game meat and wild game meat products for export for food must not be compromised by the presence of any of the things listed in subclause 2.1.
Subclauses 2.2 and 2.3 impose additional requirements to maintain the integrity of wild game meat and wild game meat products for export for food against wild game meat and wild game meat products that are not for export for food or were not prepared at a registered establishment. If boned concurrently, wild game meat and wild game meat products for export for food must be readily distinguishable. At all times, they must be segregated.
Subclause 2.4 requires the segregation and separate identification of wild game meat and wild game meat products for pharmaceutical use.
Subclause 2.5 disapplies paragraph 13.9(a) of the Australian Wild Game Meat Standard. That provision relates to the segregation of pharmaceutical material. It is intended that subclause 2.4 will supplant the provision.
Clause 3
This clause ensures that wild game meat and wild game meat products that comply with conditions of export in Part 4 are readily ascertainable and not confused with those that do not comply with the conditions.
Clause 4
This clause requires that wild game meat and wild game meat products are actually derived from the species from which they are purportedly derived. Subclause 4.2 explicitly prohibits the substitution of meat and meat products of different species.
Clause 5
This clause is designed to ensure that wild game meat and wild game meat eligible for export for particular markets only are identified as such and segregated from other wild game meat and wild game meat products.
Clause 6
This clause imposes an ongoing requirement on occupiers of registered establishments to identify and segregate wild game meat and wild game meat products if the integrity of the wild game meat or wild game meat products is suspected of not being assured. This operates with clause 10 of Schedule 2 (a notification requirement) to enable an authorised officer to subsequently apply an appropriate disposition.
Clause 7
This clause empowers an authorised officer to apply a disposition to wild game meat or wild game meat products the integrity of which is suspected of not being assured. There are three dispositions that can be applied in this circumstance: unsuitable for export as food generally; unsuitable for export as food to a particular country; or retained for further inspection or disposition.
Part 2 – Transfer
Clause 8
This clause imposes requirements to provide information to a consignee when a consignment of wild game meat or wild game meat products is dispatched from an establishment.
Subclause 8.1 lists the information that must be provided, including a full description of the consignment, identification of the dispatching establishment and the names of the importing countries for which the consignment is prepared. Paragraphs 8.1(h) and (i) require declarations to be given that the applicable export conditions in Part 4 and the relevant importing country requirements are complied with, and that the consignment information is accurate and complete. Clause 9 provides for who makes the declarations.
Subclause 8.2 requires information of the same kind to be given upon the dispatch of a consignment of wild game meat or wild game meat products for animal food or pharmaceutical use.
Clause 9
This clause supplements clause 8 by providing for who may make declarations to be given upon the despatch of a consignment. The declaration will generally be made by the person who manages or controls operations at the establishment, but the approved arrangement may designate a person if the arrangement provides for export inspection procedures.
Clause 10
This clause supplements clause 8 by requiring that declarations given upon the despatch of a consignment be signed and correctly dated. A declaration must not be false or misleading. If a declaration is false or misleading, it may lead to the suspension or revocation of the approved arrangement (clause 20 of Schedule 1) or give rise to an offence under the Criminal Code.
Clause 11
This clause imposes obligations on an occupier who receives a consignment of wild game meat or wild game meat products. If the consignment is received without the information and declarations required by clause 8, or the information is inaccurate or incomplete, the contents of the consignment must be held in conditions of security, identified, segregated, and not dealt with until an authorised officer gives a disposition to allow the goods to be dealt with.
Clause 12
This clause deems despatch information to be given to a consignee if it is given in writing and given either at the time of despatch or by accompanying the delivery of the consignment.
Schedule 8 – Export documentation
This Schedule contains provisions of a machinery nature that deal with how export permits and government certificates are applied for and issued. An export permit is mandatory for wild game meat and wild game meat products: see order 4.02. A government certificate is a document usually required by an importing country, to show that importing country requirements have been satisfied: see section 23 of the Act.
Part 1 – Export permits
Division 1.1 – Application for export permit
This Division deals with how an export permit may be applied for. An application for an export permit is in addition to a notice of intention to export. Both are required before wild game meat or wild game meat products may be exported: see orders 4.01 and 4.02.
Clause 1
This clause sets out the requirements for an application for an export permit. These requirements are mandatory. An application must be made by or on behalf of the exporter. The application must be in an approved form and given to the Secretary.
Subclause 1.2 lists the information that must be included in an application for an export permit. The list is not exhaustive: a delegate of the Secretary may require additional information to be provided (see paragraph (m)).
Clause 2
This clause supports clause 1 by requiring an applicant for an export permit to declare that all the information in the application is true and complete.
Division 1.2 – Verification of compliance
This Division applies after an application for an export permit has been received (as well as the required notice of intention to export). The Division deals with how an authorised officer verifies that the export of the wild game meat or wild game meat products concerned meets the applicable export requirements.
Clause 3
This clause permits an authorised officer to verify that an export of wild game meat or wild game meat products meets the Australian export requirements of orders 4.05 to 4.17 and the relevant importing country requirements. The threshold for verification is that the authorised officer has reasonable grounds to believe that the requirements are met. Verification may only be done if an export permit has been applied for and a notice of intention to export has been given.
Clause 4
This clause enables an authorised officer to carry out inspections and examinations and conduct samples in order to verify compliance under clause 3.
Clause 5
This clause is an alternative mechanism for verification. Clause 5 allows for verification to be done at an establishment by a designated person (eg the occupier of the establishment). Verification by an establishment may only be done if the approved arrangement for the establishment allows for it to be done, by designating a person.
A verification must be signed and dated, and accompanied by a declaration that the information in it is true and complete.
Division 1.3 – Permission to export
This Division deals with when an export permit may be given. The Division applies after an export permit has been applied for and verification has been conducted.
Clause 6
This clause sets out the grounds on which an export permit may be given manually. An export permit may only be given if a notice of intention to export has been given to the Secretary, an export permit has been applied for, and verification has been conducted under Division 1.2.
The Secretary must be satisfied that the conditions of export in orders 4.05 to 4.17 are complied with before giving an export permit. The decision in this respect lies with the Secretary and not the person who verified the proposed export under Division 1.2. It is open to the Secretary to disagree with the verification.
Other legislation may affect the ability to give an export permit: see notes 1 and 2 to clause 6. Clause 6 should be read together with the other legislation.
Clause 7
This clause deals with giving automated export permits through specified Departmental computer operating systems.
Automated export permits are issued by computer – there is no decision made by individual officers on a case-by-case basis. However, subclause 7.3 requires the Secretary to take reasonable steps to ensure that the computer operating system only issues export permits where appropriate (for example, that the system only issues export permits when the conditions in orders 4.05 to 4.17 have been met).
Clause 8
This clause prohibits the giving of an export permit (whether manual or automated) where the Secretary has reasonable grounds to believe that certain circumstances exist. The circumstances relate to the condition or disease of the wild game meat or wild game meat products, potential adverse effects on Australia’s export trade, and the provision of inaccurate or incomplete information in relation to the wild game meat or wild game meat products.
Subclause 8.2 allows the Secretary to refuse an export permit in certain circumstances. The circumstances are that an importing country requirement is not met, that the exporter has failed to assist an auditor or authorised officer, and that the exporter has failed to comply with certain documentary requirements. The refusal of an export permit under subclause 8.2 is discretionary – even if one of the circumstances exist, the Secretary may still decide to issue the export permit.
Clause 9
This clause requires the assignment of an identifying number for an export permit.
Clause 10
This clause allows for the variation and revocation of export permits.
An export permit may be varied on request of the exporter, to correct an error or update information in the permit.
An export permit may be unilaterally revoked by the Secretary by written notice to the exporter. An export permit may only be revoked if one of the grounds listed in subclause 10.3 is met. The grounds generally relate to the wild game meat or wild game meat products not meeting the Australian export requirements (orders 4.05 to 4.17) and importing country requirements, the condition of the wild game meat or wild game meat products and the accuracy of information provided to the Secretary. An export permit may also be revoked if the exporter abandons his or her intention to export the wild game meat or wild game meat products.
Clause 11
This clause provides that an export permit only has effect for 28 days (unless it is revoked earlier). If wild game meat or wild game meat products have not been exported within 28 days of the permit being given, a new permit must be applied for.
Clause 12
This clause ensures that export permits may be overridden by directions of the Secretary and dispositions of authorised officers. For example, if an export permit is given, the Secretary may still direct that the wild game meat or wild game meat products not be exported, or an authorised officer may apply a disposition to prohibit the export.
Part 2 – Government certificates
A government certificate is not a requirement of the Orders. It is a document usually required by an importing country, to show that importing country requirements have been satisfied: see section 23 of the Act. Part 2 facilitates government certificates.
Clause 13 – Application for government certificate
This clause sets the requirements for an application for a government certificate. The application must be in the approved form, specify the importing country requirements to which the certificate relates and contain any other information required by the Secretary.
Clause 14
This clause sets the circumstances in which a government certificate may be issued. A certificate may only be issued if the Australian export requirements (orders 4.05 to 4.17) and importing country requirements are met, as well as the matters specified in the certificate.
Clause 15
This clause prohibits the issue of a government certificate in certain circumstances, even if the requirements of clause 14 have been met. The circumstances are:
· there is no export permit in effect for the wild game meat or wild game meat products;
· inaccurate or incomplete information has been given to the Secretary;
· a disease or condition present in Australia is likely to affect the acceptability to the importing country of the wild game meat or wild game meat products; or
· the export could result in adverse effects for Australia’s export trade.
If it appears to the Secretary that one of the above circumstances is met, the refusal of the government certificate is mandatory (the Secretary has no discretion).
Subclause 15.2 allows the Secretary to refuse a government certificate in three circumstances: where the exporter has failed to assist an auditor or authorised officer; where the exporter has failed to comply with certain documentary requirements; and where the exporter has failed to comply with a direction. The refusal of a government certificate under subclause 15.2 is discretionary – even if one of the disqualifying circumstances exist, the Secretary may still decide to issue the export permit.
Part 3 – Giving information or documents about exports
This Part sets out provisions that enable certain documents to be given to and by authorised officers and the Secretary electronically. The provisions in Part 3 serve the purposes of section 24A of the Act, which allows for specifications for the transmission of information and documents.
Clause 16
This clause specifies EXDOC as the system specified for the giving of information or documents in relation to the export of wild game meat or wild game meat products.
Certain documents are only valid if issued by EXDOC. These include notices of intention to export and applications for export permits or government certificates. Likewise, certain documents issued by the Secretary are only valid if issued by EXDOC, including export permits and government certificates.
However, clause 16 does not apply if the EXDOC system is inoperative: see clause 17.
Subclause 16.3 requires the Secretary to take reasonable steps to ensure that persons with a disability are not disadvantaged by the EXDOC system.
Clause 17
This clause allows for documents to be given in writing if the EXDOC system is inoperative. Documents given in this circumstance must be done in the manner specified by the Secretary.
Clause 18
This clause requires the use of a person’s identifying code in transmitting a document to the person by EXDOC.
Clause 19
This clause requires a person to use the person’s identifying code to authenticate a transmission by the person to the Secretary.
Clause 20
This clause has the effect of making clauses 16 to 19 requirements under the Act for the use of EXDOC.
Clause 21
This clause facilitates clauses 18 and 19 by requiring (to the extent of taking all reasonable steps) the Secretary to give each person who uses EXDOC an identifying code.
Schedule 9 – Approval of auditors
This Schedule facilitates the operation of Part 6 of the Orders by establishing the regime by which auditors are approved to conduct audits under the Orders.
Part 1 – Register of approved auditors
Clause 1
This clause requires the Secretary to keep a publicly accessible register of approved auditors.
The register must contain, for each auditor, the auditor’s name and the scope and limitations of the auditor’s approval.
Part 2 – Approval of auditors
Clause 2
This clause provides for how an application for approval as an auditor is to be made.
An application must be made to the Secretary. It must include evidence of the applicant’s qualifications, auditing experience and documented procedures for the conduct of audits. The application must indicate whether the auditor seeks approval as an auditor for all requirements that can be audited under Part 6, or a limited approval.
Clause 3
To help the Secretary to decide an application for approval, this clause enables the Secretary to require the applicant to provide further information or documents or submit to an assessment.
Clause 4
This clause generally requires the Secretary to decide an application for approval within 30 days. Subclause 4.1 deems an application to be refused after 30 days, to enable an applicant to exercise his or her right to seek review.
Clause 5
This clause sets out the grounds for approval of an auditor. Approval is discretionary if all of the criteria listed in paragraphs 5.1(a) to (e) are satisfied. The criteria relate to the propriety, knowledge, training, skills, experience and objectivity of the applicant as well as the applicant’s prospects of complying with the audit requirements in Part 2 and documented procedures. In deciding whether to approve an applicant, the Secretary may take into account potential conflicts of interest that may affect the auditor.
Approval is given by notice in writing. The notice of approval must specify the scope of the approval. It is open to the Secretary to approve an auditor to a different extent to the approval sought by the auditor (eg to only approve the auditor for some kinds of audits).
Clause 6
This clause requires identity cards to be given to approved auditors. An identity card must be returned if the auditor ceases to be approved. The requirement to return an identity card is subject to a penalty of 10 penalty units.
Clause 7
This clause gives the Secretary the discretion to refuse to approve an auditor if the auditor owes an amount to the Department or it appears to the Secretary that the auditor has made a false, misleading, inaccurate or unsupported statement.
Clause 8
This clause requires written notice to be given of a decision to refuse the approval of an auditor. The notice must give reasons for the decision and notify the auditor of his or her review rights under Part 10.
Clause 9
This clause allows for the approval of an auditor subject to conditions specified by the Secretary. The power to impose conditions is not unlimited: the conditions must be considered relevant for the purposes of ensuring that paragraphs 5.1(b) to (e) are met (generally, that audits will be conducted properly).
Clause 10
This clause deals with the duration of approval of an auditor. An approval commences when it is given (or on a later specified day), unless a fee under the Export Control (Fees) Orders 2001 is outstanding. An approval is limited to 12 months. After 12 months, a new approval must be sought.
Clause 11
This clause enables the Secretary to assess an auditor’s competence at any time. An assessment may involve, amongst other things, an examination of the auditor’s reports or observations of the auditor while conducting an audit.
Part 3 – Revocation of approval of auditor
Clause 12
This clause allows for the approval of an auditor to be revoked.
There are a number of grounds upon which the Secretary may decide to revoke an auditor’s approval. Those grounds are listed in paragraphs 12.1(a) to (e) and generally relate to the propriety and competence of the auditor and the auditor’s compliance with the requirements of the Orders. The Secretary may take into account any conflict of interest that may affect the auditor.
A revocation is effected by written notice. The notice must state the reasons for the revocation and set out the auditor’s appeal rights. The revocation takes effect from the day the revocation notice is given, unless the notice specifies a later day.
Schedule 10 – Provision of services of authorised officers
This Schedule contains machinery provisions that deal with how the inspection services of authorised officers are provided to establishments. Schedule 10 is called up by order 8.10, which requires the presence of an authorised officer for production to commence at an establishment, if the approved arrangement for the establishment requires the presence of an authorised officer.
Part 1 – Application
This Part deals with how inspection services are applied for and allocated to an establishment.
Clause 1
This clause requires an application for the allocation of inspection services. An application must be made at least one month before export operations at the establishment commence (or recommence). The application must be accompanied by a notice to the Secretary of the duration of the operations and the number of chains and chain speeds for each species of animal.
An application is mandatory: inspection services cannot be allocated without an application made in accordance with clause 1.
Clause 2
This clause allows the Secretary to determine a preliminary allocation of inspection services to an establishment. The preliminary determination must be made having regard to the factors in subclause 2.1: these factors generally address the requirements of the particular establishment and the capacity of the Department to provide the services.
A preliminary determination may allocate inspection services on a number of bases, including annual, monthly, weekly or daily. An annual allocation can only be made if the establishment operates for at least 10 months of a financial year.
Clause 3
This clause provides that a preliminary allocation is determined by notice in writing to the occupier of the establishment. Where appropriate, the notice should advise the occupier of ways that the occupier can reduce his or her need for inspection services.
Clause 4
This clause applies when the occupier accepts the preliminary allocation. The Secretary and the occupier must then complete a memorandum of agreed intent to document the allocation.
Clause 5
This clause permits an occupier to dispute the preliminary allocation. The occupier must dispute the allocation within seven days, by applying to the Secretary. If seven days elapse from the day the occupier receives the preliminary determination, the preliminary determination is deemed to be a memorandum of agreed intent binding the occupier.
Clause 6
This clause allows an occupier to implement suggestions of the Secretary to reduce the occupier’s need for inspection services. If the occupier implements the suggestions, the Secretary must make a revised determination allocating inspection services that reflects the implementation.
Clause 7
This clause requires the completion of a memorandum of agreed intent to reflect a revised determination under clause 6.
Clause 8
This clause allows an occupier to dispute a revised determination under clause 6 in the same way that the occupier may dispute a preliminary determination.
Clause 9
This clause applies where a preliminary determination or revised determination has been disputed. The Secretary must establish a Review Committee comprising representatives of various stakeholders (the occupier, the Department, industry, and if applicable, the relevant unions).
Clause 10
This clause requires the Review Committee to make a recommendation to the Secretary on the level of inspection services to be provided to the establishment.
Clause 11
Where a determination is disputed, this clause requires the Secretary to make a final determination of inspection services, having regard to the Review Committee’s recommendations under clause 10. The recommendation does not bind the Secretary, but the Secretary must have regard to the recommendation.
Clause 12
This clause requires the Secretary’s final determination under clause 11 to be notified to the occupier concerned within 30 days of the occupier disputing the preliminary or revised determination. The notice must be in writing and include reasons for the determination.
Clause 13
This clause enables an occupier to apply to the Administrative Appeals Tribunal for review of a final determination of the Secretary under clause 11.
Clause 14
This clause requires the notice of a final determination to include a statement regarding the availability of review by the Administrative Appeals Tribunal.
Clause 15
This clause provides that a failure to include a statement under clause 14 in a notice of a final determination does not invalidate the determination.
Clause 16
This clause makes it clear that the merits review mechanisms available under Part 1 of Schedule 10 displace the general merits review mechanisms under Division 10.1 of the Orders.
Clause 17
This clause is a definition provision allowing a final determination to be referred to in clauses 12 to 15 by the shorthand “decision”.
Part 2 – Alteration of allocation of inspection services
Clause 18
This clause imposes an ongoing requirement for an occupier to notify the Secretary if the construction of the occupier’s registered establishment changes in a way that may affect the allocation of inspection services to the establishment.
Clause 19
This clause allows an occupier to apply to have the allocation of inspection services to a registered establishment of the occupier altered. An application must be made with at least one months notice (unless the allocation of inspection services is on an hourly basis, in which case, the application must be made with at least one weeks notice). The application must be made in writing.
Clause 19 does not apply to applications for additional inspection services (clause 20) or giving advice that inspection services are not required for a period of shutdown (clause 22).
Clause 20
This clause applies to additional inspection services (i.e. services in addition to the occupier’s allocation). Generally, an occupier may apply for additional inspection services for a short period (for example, for annual inspection services, additional inspection services may be applied for in respect of a monthly or weekly basis).
This clause is intended to allow for temporary increases to the provision of inspection services. Subclause 20.7 obliges the Secretary to try to provide additional inspection services even if notice of the requirement for the services has been given late (this obligation is subject to the Secretary’s discretion and cost efficiency considerations).
Clause 21
This clause allows an occupier to terminate the provision of additional inspection services with two weeks notice. This does not apply if a period for the additional inspection services has been nominated in the application for the services.
Clause 22
This clause allows an occupier to temporarily suspend the receipt of inspection services if the occupier’s establishment shuts down for a period of at least 14 days. This can only be done if the establishment is receiving services on an annual basis.
Clause 23
This clause enables the Secretary to revise an existing allocation of inspection services if one of the circumstances relevant to the allocation (listed in paragraphs 2.1(a) to (f)) changes. A revised allocation may be disputed by an occupier under clause 24.
Clause 24
This clause allows an occupier to dispute a revised allocation of inspection services under clause 23. If the revised allocation is disputed, the Secretary must negotiate the allocation with the occupier. If negotiations fail, the Secretary must seek agreement with the relevant industry representative (nominated occupier). If the industry level negotiation fails, the Secretary must proceed to make a final decision, taking into account the factors in paragraphs 2.1(a) to (f) and, but not being bound by, the views of the occupier and the industry representative.
Clause 25
If an allocation is revised by the Secretary following negotiations, that revision replaces the revision determined under this clause.
Clause 26
This clause provides that if the Secretary makes a final decision on a revised allocation under clause 24 (following negotiation with the occupier and industry representative), the Secretary must notify the occupier in writing. The notice must be given within 30 days after the day the Secretary received the occupier’s application to dispute the revised allocation. The notice must include reasons for the decision.
Clause 27
This clause enables an occupier to apply to the Administrative Appeals Tribunal for merits review of a final decision by the Secretary on a revised allocation.
Clause 28
This clause requires the notice of a final decision under clause 24 to include a statement regarding the availability of review by the Administrative Appeals Tribunal.
Clause 29
This clause provides that a failure to include a statement under clause 28 in a notice of a final decision on a revised allocation does not invalidate the decision.
Clause 30
This clause makes it clear that the merits review mechanisms available under Part 2 of Schedule 10 for a final decision on a revised allocation displace the general merits review mechanisms under Division 10.1 of the Orders.
Clause 31
This clause is a definition provision allowing a final decision to be referred to in subclause 24.3 (that is, a decision on a revised allocation after negotiations with the occupier and industry representatives fail) by the shorthand “decision”.
Clause 32
This clause allows the Secretary to unilaterally withdraw inspection services if fees payable for inspection services provided to the occupier remain unpaid 14 days after the day the fees are due for payment.