PART II—ESTABLISHMENT, FUNCTIONS AND POWERS OF THE AUSTRALIAN AGRICULTURAL AND VETERINARY CHEMICALS COUNCIL
Establishment
Functions
Powers
Minister may give directions
PART III—CLEARANCE OF CHEMICALS
Applications for clearances
Applications for variations of conditions
Council may require further information or samples in certain circumstances
Clearances
Variations
Reconsideration of clearance
Overseas trials
TABLE OF PROVISIONS—continued
Section
Council may seek advice from other Commonwealth bodies and State registering authorities
Disclosure of confidential commercial information
Grant of clearance not to preclude applications for clearance of similar chemical products
Notification of new information to Council
PART IV—MEMBERSHIP, MEETINGS AND STAFF OF COUNCIL
Membership of Council
Representation of external Territories
Committees
Termination etc. of appointments
Leave of absence of members
Disclosure of interests
Meetings of Council
Resolutions without formal meetings
Remuneration and allowances
Acting appointments
Chemicals Co-ordinator
Other staff and consultants
PART V—MISCELLANEOUS
Exportation of chemical products
False or misleading information etc.
Power to seek information
Holders of certificates of clearance
Conduct by directors, servants or agents
Fees
Review of decisions
Statement accompanying notification of decisions
Documents and samples become Commonwealth property
Delegation
Exemption from suit
Substances that are already in use etc.
Annual reports
Cessation of operation of Act
Regulations and orders
SCHEDULE
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Agricultural and Veterinary Chemicals Act 1988
No. 91 of 1988
An Act to establish procedures for examining agricultural chemical products and veterinary chemical products to ascertain their suitability for use in Australia and in the external Territories, and for related purposes
[Assented to 24 November 1988]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
PART I—PRELIMINARY
Short title
This Act may be cited as the Agricultural and Veterinary Chemicals Act 1988.
Commencement
The provisions of this Act, including this section, commence on a day to be fixed by Proclamation.
Objective of the Act
(1) The objective of this Act is to make provision for a national system for evaluating the suitability of agricultural chemical products and veterinary chemical products to be cleared for registration in States and Territories for particular uses with a view to:
(a) protecting and enhancing trade and commerce in agricultural produce and livestock:
(i) between Australia and places outside Australia;
(ii) among the States; or
(iii) engaged in by a corporation;
(b) assisting in the conduct of agricultural and veterinary operations in the Territories;
(c) minimising any undue hazard to:
(i) the general public;
(ii) the environment;
(iii) users of such products and other workers exposed to such products or to residues of such products; and
(iv) agricultural produce and livestock;
arising from the application of such products;
(d) minimising the need for separate evaluation of such products by the registering authorities of States and Territories;
(e) ensuring that such products are effective in respect of uses for which they are cleared; and
(f) ensuring that evaluation of such products is carried out in a timely and efficient manner.
(2) In paragraph (1) (a), a reference to a corporation shall be construed as including a reference to a financial corporation to which paragraph 51 (xx) of the Constitution is applicable including a body corporate which carries on, as a principal business, the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned).
Interpretation
(1) In this Act, unless the contrary intention appears:
“active constituent”, in relation to a chemical product, means:
(a) if a chemical product is not a formulated product—the chemical of which the product is comprised; or
(b) if the chemical product is a formulated product—the chemical that is principally responsible, or the chemicals that together are principally responsible, for its biological effects;
“agricultural chemical product” means a substance or mixture of substances that is represented to be a means of directly or indirectly:
(a) destroying, stupefying, inhibiting, attracting or repelling a pest in relation to a plant, a place or a thing;
(b) destroying a plant;
(c) modifying the physiology of a plant so as to alter its natural development, productivity or reproductive capacity; or
(d) modifying the effect of another agricultural chemical product;
but does not include:
(e) a veterinary chemical product; or
(f) a substance or mixture of substances of a kind that is declared by the regulations not to be an agricultural chemical product for the purposes of this Act;
“animal” does not include man but includes the semen, ova or embryo of an animal other than man or any other substance or thing directly relevant to the reproduction of an animal other than man;
“chemical product” means an agricultural chemical product or a veterinary chemical product;
“certificate of clearance”, in respect of a chemical product, means:
(a) a certificate issued under section 15 clearing the chemical product for registration in particular States and Territories; or
(b) a certificate issued under section 16 or 17 in substitution for such a certificate;
“Chemicals Co-ordinator” means the officer of the Department who is from time to time designated by the Secretary of the Department to be the Chemicals Co-ordinator for the purpose of this Act;
“clearance”, in respect of a chemical product, means the clearance of that chemical product for registration in particular States and Territories as evidenced by the issue of a certificate of clearance in respect of that chemical product;
“committee” means a committee established under section 25;
“confidential commercial information”, in relation to a chemical product or a constituent thereof, means:
(a) a trade secret relating to the chemical product or constituent;
(b) any other information relating to the chemical product or constituent that has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c) information (other than trade secrets or information to which paragraph (b) applies) concerning the lawful commercial or financial affairs of a person, organisation or undertaking, being affairs:
(i) relating to the manufacture, distribution or sale of the chemical product or constituent; and
(ii) in respect of which the person, organisation or undertaking could be unreasonably affected in an adverse manner by the disclosure of the information;
“Council” means the Australian Agricultural and Veterinary Chemicals Council established by section 8;
“designated Minister”, in relation to a State or Territory that is a scheme participant, means:
(a) if that scheme participant is a State or the Northern Territory and there is only one Minister of that State or Territory responsible for regulation of the use of chemical products generally in that State or Territory—that Minister;
(b) if that scheme participant is a State or the Northern Territory and there are different Ministers of that State or Territory responsible for regulation of the use of chemical products of different kinds in that State or Territory—that one of those Ministers who is designated for the purpose by, or in a manner specified in, the agreement by reference to which the State or Territory became a scheme participant; and
(c) if that scheme participant is the Australian Capital Territory— the Minister of the Commonwealth responsible for regulation of the use of chemical products in that Territory;
“member” means a member of the Council and includes the Chairperson;
“pest”, in relation to any animal, plant, thing or place, means:
(a) so far as any animal, plant or thing is concerned, any animal, plant or other biological entity that injuriously affects the physical condition, worth or utility of the first-mentioned animal, plant or thing; and
(b) so far as any place is concerned, any animal, plant or other biological entity that injuriously affects the use or enjoyment of that place;
“plant” includes a seed or cutting of a plant, or any other part or product of a plant directly relevant to the production of another plant;
“published literature”, in relation to a particular matter, means all documents, in whatever form, that relate to that matter and that are accessible to the public;
“residue”, in relation to a chemical product, means the remains of that chemical product persisting in or on food, other agricultural commodities, plants, animals, soil, water or other environmental components, together with all derivatives, metabolites and degradation products of that chemical product;
“scheme participant” means a State, the Northern Territory, or the Australian Capital Territory if that State or Territory is declared by the Minister, by notice published in the Gazette under subsection (3), to be a scheme participant;
“substance” includes:
(a) an organism;
(b) material that is produced from an organism; and
(c) matter the production of which involves the use of an organism;
but does not include a vaccine prepared from organisms from the body of an animal for use only in the treatment of that animal;
“veterinary chemical product” means a substance or mixture of substances that is represented to be a means of directly or indirectly:
(a) preventing, diagnosing, curing or alleviating a disease or condition in an animal or an infestation of an animal by a pest in relation to that animal;
(b) curing or alleviating an injury suffered by an animal; or
(c) modifying the physiology of an animal:
(i) so as to alter its natural development, productivity or reproductive capacity; or
(ii) so as to make it more manageable;
but does not include:
(d) such a substance or mixture of substances prepared by a pharmacist or veterinary surgeon, in the course of the practice of his or her profession, to deal with a particular condition of a particular animal in a particular instance;
(e) animal feed in relation to which none of the effects referred to in paragraph (a), (b) or (c) are claimed; or
(f) a substance or mixture of substances of a kind that is declared by the regulations not to be a veterinary chemical product for the purposes of this Act.
(2) Where reference is made in a provision of this Act to the registering authority of a State or Territory that is a scheme participant then, in the application of that provision in respect of chemical products or chemical products of a particular kind, that reference shall be taken to be a reference:
(a) to the Governmental entity of that State or Territory; or
(b) to the body or organisation established by or under the laws of that State or Territory;
that is principally responsible, under the laws of that State or Territory, for the registration or approval (however described) of chemical products generally, or of chemical products of that kind, for use in that State or Territory.
(3) Where the Minister is satisfied:
(a) that a State or the Northern Territory has entered into an agreement with the Commonwealth, in terms substantially similar to the terms of the agreement set out in the Schedule; or
(b) that an Ordinance of the Australian Capital Territory makes satisfactory provision for the clearance of chemical products under
this Act to constitute the basis, except in exceptional circumstances referred to in that Ordinance, for regulating the use of those chemical products in the Australian Capital Territory;
the Minister shall, by notice published in the Gazette, declare that State, the Northern Territory or the Australian Capital Territory, as the case requires, to be a scheme participant for the purposes of this Act.
(4) In this Act, a reference to the place of residence of a person shall, in a case where that person is a body corporate, be taken to be a reference to the State or Territory where that body corporate is incorporated.
(5) For the purposes of this Act:
(a) a clearance of a chemical product shall be taken to have been granted when a certificate of clearance in respect of that chemical product is issued;
(b) the conditions to which the clearance of a chemical product is subject shall be taken to have been varied when the certificate of clearance in which the clearance for registration of that chemical product is expressed to be subject to those conditions is revoked and another certificate of clearance in which the clearance for registration of that chemical product is expressed to be subject to different conditions is substituted; and
(c) a clearance of a chemical product shall be taken to have been withdrawn when the certificate of clearance in respect of that chemical product is revoked and another certificate in respect of that chemical product is not substituted.
Relationship to Therapeutic Goods Act 1966
The provisions of this Act are in addition to, and not in substitution for, the requirements of the Therapeutic Goods Act 1966.
Act to bind Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island, but nothing in this Act renders the Crown liable to be prosecuted for an offence.
Extension of Act to external Territories
(1) The regulations may make provision for the application of this Act, subject to such modifications as are prescribed, to an external Territory and, where the regulations make such provision, the Act shall apply accordingly.
(2) In subsection (1), “modifications” includes additions, omissions and substitutions.
PART II—ESTABLISHMENT, FUNCTIONS AND POWERS OF THE AUSTRALIAN AGRICULTURAL AND VETERINARY CHEMICALS COUNCIL
Establishment
The Australian Agricultural and Veterinary Chemicals Council is established.
Functions
The functions of the Council are:
(a) to grant or withdraw clearances for the registration of chemical products for use in States and Territories for specified purposes under specified conditions;
(b) to determine the conditions to which such clearances are subject or to vary such conditions;
(c) to obtain advice from other bodies concerning the granting or withdrawing of such clearances or the determination or variation of such conditions;
(d) to evaluate the effects of the use of chemical products in States and Territories;
(e) to develop, in consultation with the National Health and Medical Research Council and the National Occupational Health and Safety Commission, codes of practice, standards and guidelines for, and to recommend precautions to be taken in, the use of chemical products in States and Territories;
(f) to collect, interpret, disseminate and publish information relating to chemical products and their use;
(g) to encourage and facilitate the application and use of results of evaluation and testing of chemical products;
(h) to exchange information relating to chemical products and their use with overseas bodies having functions similar to the Council’s functions;
(j) when requested by the Minister, or on its own motion, to report to or advise the Minister on any matter relating to chemical products or arising in the course of the performance of its functions; and
(k) in connection with the performance of its functions under paragraphs (a) to (j) (inclusive), to consult with persons and organisations concerned with chemical products and their use.
Powers
Subject to this Act, the Council has power to do all things necessary or convenient to be done in connection with the performance of its functions.
Minister may give directions
The Minister may, after consulting with each designated Minister, give directions in writing to the Council concerning the performance of its functions and the exercise of its powers, and the Council shall comply with those directions.
PART III—CLEARANCE OF CHEMICALS
Applications for clearances
(1) A person may, in the manner approved by the Council, apply to the Council for a clearance for registration of a chemical product for use in States and Territories that are scheme participants and that are specified in the application.
(2) The application shall be in such form as is approved by the Council and shall contain such information as is, from time to time, specified by the Council in that approval.
(3) Without limiting the generality of subsection (2), a form of application approved by the Council may be required to contain information relating to:
(a) the identity of the chemical product’s constituents;
(b) the composition and purity of the chemical product’s active constituent or active constituents;
(c) the uses of the product for which clearance is sought;
(d) the efficacy of the chemical product for each of those represented uses;
(e) the safety of the chemical product in relation to persons exposed to it or consuming or using products containing its residues;
(f) the effect of the chemical product or its residues on animals, plants and things;
(g) the extent of the release of the chemical product’s constituents or its residues to the environment in specified circumstances;
(h) the degree of persistence, retention and movement in the environment of the chemical product and its residues;
(j) methods for the routine detection of the chemical product or its residues in foods, animal feed, beverages and the environment;
(k) methods for:
(i) the detoxification or neutralisation of the chemical product in the environment; and
(ii) the disposal of the chemical product;
(m) the stability of the chemical product in specified circumstances;
(n) the compatibility of the chemical product with other substances or things with which it is likely to be stored or used; and
(p) whether application has been made in any foreign country for the registration or approval (however described) of the chemical product
for use in that country and, in respect of each such application that has been determined, the outcome of the application.
(4) An applicant shall, in support of an application, provide a sample of the active constituent, or of each active constituent, of the chemical product to which the application relates, in such amount and in such manner as is specified by the Council, to a body specified by the Council, for the purpose of analysis.
(5) Where laboratory or field experiments have been conducted in relation to any matter relevant to the application, the application shall contain particulars of the conduct of, and the results obtained in, those experiments.
(6) If the applicant does not reside in Australia, the applicant shall specify the name and address of a person residing in Australia who shall be the agent of the applicant in relation to the application.
Applications for variations of conditions
(1) A person who is the holder of a certificate of clearance for a chemical product may, in the manner approved by the Council, apply to the Council for variation of the conditions to which the clearance of the chemical product is subject.
(2) The application shall be in such form as is approved by the Council and shall contain:
(a) a statement of the reasons the variation of the conditions is being sought;
(b) such other information as is, from time to time, specified by the Council in that approval; and
(c) where laboratory or field experiments have been conducted in relation to any matter relevant to the application, the application shall contain particulars of the conduct of, and the results obtained in, those experiments.
Council may require further information or samples in certain circumstances
(1) The Council may, in dealing with an application for a clearance of a chemical product, or for a variation of the conditions to which the clearance of a chemical product is subject, require the applicant, by notice in writing, within such period as is specified in the notice:
(a) to provide to the Council further information, of a kind specified in the notice, that may be relevant to the application;
(b) to carry out a search of published literature for information on the chemical product or of any constituent and to provide a report to the Council on the results of that search; or
(c) to provide to the Council or to another body specified by the Council, in connection with the application, a further sample of the
active constituent, or of each active constituent, of the chemical product;
and, where the Council so requires, the applicant shall comply with that request.
(2) Where an applicant fails, without reasonable excuse, to comply with a requirement under subsection (1), the Council may, in its discretion, and without limiting its rights under section 36 to treat the application as having been withdrawn, suspend further consideration of the application until the applicant complies with the requirement (other than insofar as the requirement specifies the period in which such compliance is required).
Clearances
15. (1) Where a person applies to the Council under section 12 for a clearance of a particular chemical product:
(a) if the Council is satisfied:
(i) that an application made to it in respect of that chemical product contains the information required under subsection 12 (2);
(ii) that the information so contained is correct in all material particulars; and
(iii) that, having regard to that information and to any inquiries conducted by the Council, and subject to compliance by all affected parties with such conditions as the Council thinks appropriate to apply under subsection (3), the chemical product:
(a) would be effective if applied, in the States and Territories specified in the application, for its represented uses;
(b) would not unduly prejudice trade between Australia and any place or places outside Australia if applied, in the States and Territories specified in the application, for its represented uses;
(c) would not constitute an undue hazard to the safety of persons exposed to it during its manufacture, handling, transportation, storage, use or disposal or consuming or otherwise using products containing its residues; and
(d) would not be likely to have a serious unintended effect on animals, plants or things;
the Council shall, by notice in writing given to the applicant, grant the application; or
(b) if the Council is not so satisfied, the Council shall, by notice in writing given to the applicant, refuse the application.
(2) A notice given to an applicant under paragraph (1) (a) shall incorporate the issue to the applicant of a certificate of clearance for
registration of the chemical product concerned for use in the States and Territories specified in the application, being a certificate that will have effect from a day specified in the certificate occurring not earlier than the day of issue of the certificate.
(3) Where a certificate of clearance in respect of a chemical product is incorporated in a notice under paragraph (1) (a), the clearance of that chemical product shall be subject to such conditions, specified in the certificate, as the Council thinks appropriate.
(4) Without limiting the matters to which conditions referred to in subsection (3) may relate, clearance of a chemical product may, in circumstances of emergency, be granted on the condition that that clearance remains current for a limited period only and, where the clearance is so granted, at the end of that period, if the conditions of clearance have not been varied so as to remove that condition, the clearance shall be taken to have been withdrawn.
(5) A notice given to an applicant under subsection (1) shall include brief particulars of the reasons for the decision to which the notice relates, including, in a case where the notice is given under paragraph (1) (a), brief particulars of the reasons for the particular conditions to which the clearance of the chemical product concerned is subject.
(6) Where the Council, in connection with a notice under paragraph (1) (a), issues a certificate of clearance in respect of a particular chemical product, it shall, as soon as practicable after the issue of the certificate:
(a) publish in the Gazette a notice to the effect:
(i) that a certificate of clearance has been issued in respect of the chemical product concerned; and
(ii) that the certificate of clearance has come into effect, or will come into effect, on a specified day;
being a notice that includes a brief statement of such of the conditions subject to which the clearance has been given as directly regulate the use of the chemical product but that does not include any confidential commercial information in relation to the chemical product or any constituent thereof; and
(b) forward to the registering authority of each of the scheme participants a full copy of the certificate of clearance.
Variations
16. (1) Where a person applies to the Council under section 13 to vary the conditions to which the clearance of a particular chemical product is subject:
(a) if the Council is satisfied:
(i) that the application made to it contains the information required under subsection 13 (2);
(ii) that the information so contained is correct in all material particulars; and
(iii) that, having regard to that information and to any inquiries conducted by the Council, and subject to compliance by all affected parties with the conditions as they are proposed to be varied, the chemical product:
(a) will be, or will continue to be, effective if applied, in the States and Territories in relation to which it has been cleared, for its represented uses or for its represented uses as proposed to be varied;
(b) will continue not to unduly prejudice trade between Australia and a place or places outside Australia if applied, in the States and Territories in relation to which it has been cleared, for its represented uses or for its represented uses as proposed to be varied;
(c) will continue not to constitute an undue hazard to the safety of persons exposed to it during its manufacture, handling, transportation, storage, use or disposal or consuming or otherwise using products containing its residues; and
(d) will continue to be unlikely to have a serious unintended effect on animals, plants or things;
the Council shall, by notice in writing given to the applicant, grant the application; or
(b) if the Council is not so satisfied, the Council shall, by notice in writing given to the applicant, refuse the application.
(2) A notice given to an applicant under paragraph (1) (a) shall incorporate:
(a) the revocation of the certificate of clearance to which the application relates with effect from a day specified in the notice occurring not earlier than the day of issue of the notice; and
(b) the issue to the applicant, in substitution for the revoked certificate, of a new certificate of clearance for registration of the chemical product concerned for use in the States and Territories to which the previous certificate related, being a certificate that will take effect from the specified day and in which the clearance of the chemical product is expressed to be subject to the conditions as they are proposed to be varied.
(3) A notice given to an applicant under subsection (1) shall include brief particulars of the reasons for the decision to which the notice relates.
(4) Where the Council, in connection with a notice under paragraph (1) (a), issues a new certificate of clearance in respect of a chemical product in substitution for a revoked certificate of clearance, it shall, as soon as practicable after the issue of the new certificate:
(a) if the new certificate varies conditions of clearance of the chemical product relating to the uses to which it may be put, publish in the Gazette a notice to the effect:
(i) that a new certificate has been issued in substitution for an existing certificate in respect of the chemical product concerned so as to effect a variation of the conditions to which the clearance of that chemical product is subject; and
(ii) that the new certificate has come into effect, or will come into effect, on a specified day;
being a notice that includes a brief statement of the particulars of the variation of the conditions so far as that variation relates to the uses of the chemical product and of the reasons for that variation but that does not include any confidential commercial information in relation to the chemical product or any constituent thereof; and
(b) forward to the registering authority of each of the scheme participants a full copy of the new certificate of clearance.
Reconsideration of clearance
17. (1) Where the Council, having regard to information received by it at any time after the grant of a clearance of a chemical product, is of the opinion that, if the information is wholly or partly correct, the clearance might not have been granted or might have been subject to conditions other than the conditions to which it is presently subject, the Council shall, unless it is satisfied that the information is vexatious, by notice in writing:
(a) inform the person holding the certificate of clearance that it proposes to reconsider the grant of the clearance including the conditions to which the clearance is subject and of its reasons for so proposing; and
(b) require the person, within a specified period that is reasonable having regard to the nature of the information received by the Council to show cause why the clearance should not be withdrawn or should not be made subject to conditions other than the conditions to which it is presently subject.
(2) Where a person receives a notice under subsection (1) in respect of a chemical product, the person shall give to the Council, within the period specified in the notice, any information in the possession or under the control of the person, or of which the person has knowledge, that appears to the person to be relevant to that reconsideration.
(3) After considering all information of the kind referred to in subsection (1) in respect of a chemical product in respect of which a clearance for registration is in force and any information given to it under subsection (2) in respect of that product, and having regard to any inquiries the Council may make on its own motion, the Council shall:
(a) if it continues to be satisfied, subject to compliance with the’ present conditions to which the clearance of the chemical product is subject, of the matters referred to in sub-subparagraphs 15 (1) (a) (iii) (a), (b), (c) and (d)—by notice in writing given to the holder of the certificate of clearance, re-affirm the clearance for registration of the chemical product subject to those conditions; and
(b) if it does not continue to be so satisfied—by notice in writing given to the applicant, inform the applicant to that effect.
(4) Where the Council is satisfied that the conditions to which the clearance of the chemical product concerned is subject can be varied in such a manner as will enable the Council to be satisfied of the matters referred to in sub-subparagraphs 15 (1) (a) (iii) (a), (b), (c) and (d), the notice given to an applicant under paragraph (3) (b) shall incorporate:
(a) the revocation of the certificate of clearance that is being reconsidered with effect from a day specified in the notice occurring not earlier than the day of issue of the notice; and
(b) the issue to the holder of the revoked certificate, in substitution for the revoked certificate, of a new certificate of clearance for registration of the chemical product concerned for use in the States and Territories to which the revoked certificate related, being a certificate that will take effect from the specified day and in which the clearance of the chemical product is expressed to be subject to the conditions varied in that particular manner.
(5) Where the Council is not satisfied that the conditions to which clearance of the chemical product concerned is subject can be so varied, the notice given to the applicant under paragraph (3) (b) shall withdraw the clearance by revoking the certificate with effect from a day specified in the notice occurring not earlier than the day of issue of the notice.
(6) A notice given to the holder of a certificate of clearance under subsection (3) shall include brief particulars of the reasons for the decision to which the notice relates, including, in a case where the notice is given under paragraph (3) (b), brief particulars of the reasons for the variation of the conditions to which the clearance of the chemical product concerned is subject or for the withdrawal of the clearance, as the case requires.
(7) Where the Council, in a notice under paragraph (3) (b), withdraws the clearance of a chemical product by revoking a certificate of clearance with effect from a day specified in that notice, it shall, as soon as practicable after the issue of the notice:
(a) publish in the Gazette a notice to the effect that the certificate of clearance of that chemical product is, with effect from that day, revoked, being a notice that includes a brief statement of the reasons for the revocation but that does not include any confidential commercial information in relation to the chemical product or any constituent thereof; and
(b) notify the registering authority of each of the scheme participants, in writing, of that revocation.
(8) Where the Council, in a notice under paragraph (3) (b), issues a new certificate of clearance in respect of a chemical product in substitution for a revoked certificate of clearance it shall, as soon as practicable after the issue of the new certificate:
(a) publish in the Gazette a notice to the effect:
(i) that a new certificate has been issued in substitution for an existing certificate in respect of the chemical product concerned so as to effect a change in the conditions to which the clearance of that chemical product is subject; and
(ii) that the new certificate has come into effect, or will come into effect, on a specified day;
being a notice that includes a brief statement of the particulars of the change in the conditions and of the reasons for the change but that does not include any confidential commercial information in relation to the chemical product or any constituent thereof; and
(b) forward to the registering authority of each of the scheme participants a full copy of the new certificate of clearance.
Overseas trials
For the purpose of:
(a) determining whether to grant a clearance of a chemical product or to make the clearance of a chemical product subject to particular conditions; or
(b) reconsidering the clearance of a chemical product;
the Council may take account of the results of any experimental trials already carried out in a foreign country in relation to the chemical product or to any constituent to the extent that those results are relevant having regard to:
(c) any significant differences in the proposed use of the chemical product in Australia and in that foreign country;
(d) any different environmental factors affecting the use of the chemical product in Australia and in that foreign country; or
(e) any significant additional information relating to the properties of the chemical product or of any constituent, being information that has become available since the conduct of those trials.
Council may seek advice from other Commonwealth bodies and State registering authorities
(1) For the purposes of:
(a) determining whether to grant a clearance of a chemical product or to make the clearance of a chemical product subject to particular conditions; or
(b) reconsidering the clearance of a chemical product;
the Council:
(c) may seek the advice of any Department of the Australian Public Service or of another Commonwealth authority on matters relevant to the use of the chemical product generally;
(d) shall seek the advice of the registering authority of each State or Territory that is a scheme participant and to which the clearance of the chemical product relates on matters relevant to the use of the chemical product in that State or Territory; and
(e) may seek the advice of the registering authority of any other State or Territory that is a scheme participant on matters relevant to the use of the chemical product in that other State or Territory.
(2) For the purpose of seeking the advice of a Department of the Australian Public Service, of another Commonwealth authority or of the registering authority of a State or Territory that is a scheme participant, the Council may make information obtained by it concerning the chemical product, and samples of the chemical product, available to officers or employees of the Australian Public Service performing duty in that Department, or to members or members of the staff, of that authority.
Disclosure of confidential commercial information
20. (1) A person shall not, directly or indirectly, except in the performance of his or her duties, or the exercise of his or her powers or functions, under this Act and while the person is, or after the person ceases to be, a member or member of the staff of the Council or a member of a committee, divulge or communicate to any person any confidential commercial information in respect of a chemical product or a constituent thereof acquired by the person in the performance of his or her duties or in the exercise of his or her powers or functions under this Act.
Penalty: $5,000 or imprisonment for 2 years, or both.
(2) Nothing in subsection (1) shall be taken to preclude the disclosure of confidential commercial information in respect of a chemical product to a court in any action or proceeding but the court shall do all things necessary to prevent disclosure of that information to any other person otherwise than for the purpose of the proceedings before the court.
(3) Notwithstanding anything in subsection (1), the Chairperson may:
(a) if the Minister certifies, by instrument in writing, that it is necessary in the public interest that confidential commercial information in respect of a chemical product, being information acquired by a member or member of the staff of the Council or a member of a committee, in the performance of his or her duties or the exercise of his or her powers or functions under this Act, should be divulged, divulge that information to such person as the Minister directs;
(b) divulge any such information to any prescribed authority or person; or
(c) divulge any such information to a person who, in the opinion of the Chairperson, is expressly or impliedly authorised by the applicant for, or holder of, the certificate of clearance in respect of the chemical product concerned to obtain the information.
(4) The Chairperson shall not divulge any confidential commercial information under paragraph (3) (a) in respect of a chemical product unless he or she:
(a) has advised the applicant for, or holder of, the certificate of clearance in respect of that chemical product, in writing, of his or her intention
so to divulge the information and of the reasons for so divulging that information;
(b) has given the applicant or holder a reasonable opportunity to communicate any views which the applicant or holder has concerning the proposed divulging of that information; and
(c) has taken into account any views so communicated.
(5) An authority or person to whom information is divulged under subsection (3), and any person under the control of that authority or person, shall, in respect of that information, be subject to the same obligations and liabilities under subsection (1) as if that authority or person were a person performing duties under this Act and had acquired the information in the performance of those duties.
(6) Notwithstanding subsection (1), the Chairperson may permit confidential commercial information in respect of a chemical product to be disclosed:
(a) to the Secretary of a Department of the Australian Public Service or the Chief Officer of a Commonwealth authority for the purpose of enabling the Department or authority to provide advice to the Council in accordance with paragraph 19 (1) (c); or
(b) to the Chief Officer of the registering authority of a State or Territory that is a scheme participant for the purpose of enabling that registering authority to provide advice to the Council in accordance with paragraph 19 (1) (d) or (e) or for any other purpose authorised by the law by which that registering authority was established.
(7) A person to whom information is divulged under subsection (6) and any person under the control of the first-mentioned person shall not, directly or indirectly, except:
(a) in the case of the Secretary of a Department of the Australian Public Service or the Chief Officer of a Commonwealth authority or a person under the control of the Secretary or Chief Officer— for the purpose of providing advice to the Council in accordance with paragraph 19 (1) (c); or
(b) in the case of the Chief Officer of the registering authority of a State or Territory that is a scheme participant or a person under the control of the Chief Officer—for the purpose of providing advice to the Council in accordance with paragraph 19 (1) (d) or (e) or for any other purpose authorised by the law by which that registering authority was established;
while the person is, or after the person ceases to be, such a person, divulge or communicate to any person any information so divulged.
Penalty: $5,000 or imprisonment for 2 years, or both.
(8) The powers conferred by subsection (6) are in addition to, and not in derogation of, the powers conferred by subsection (3).
(9) Nothing in subsection (3) or (6) shall be taken to limit the generality of subsection (2) or the exception to subsection (1).
(10) In this section:
“Chief Officer”, in relation to a Commonwealth authority, or a registering authority of a scheme participant, means a person, whether a member of that authority or not, who has the responsibility of executive officer or chief executive officer of that authority;
“court” includes a tribunal, authority or person having power to require the production of documents or the answering of questions.
Grant of clearance not to preclude applications for clearance of similar chemical products
The grant of a clearance of a chemical product does not preclude the grant of a clearance to another person of another similarly constituted chemical product or of a chemical product that has one or more similar constituents.
Notification of new information to Council
(1) A person to whom a clearance has been granted in respect of a chemical product shall, as soon as that person or body becomes aware of any information in relation to that chemical product or of any constituent of that chemical product that:
(a) contradicts any information furnished to the Council under this Act; or
(b) indicates that the use of the chemical product in accordance with the claims or recommendations for its use may have an unintended harmful effect or may not be as effective as was set out in the application;
notify the Council, in writing, of that information.
Penalty:
(a) in the case of a natural person—$50,000 or imprisonment for 10 years, or both; and
(b) in the case of a body corporate—$250,000.
(2) The Council may, at any time, by notice in writing, require the holder of a certificate of clearance in respect of a chemical product to provide to the Council any information of a kind specified in the notice that might warrant a reconsideration of the clearance, being information of which the holder might reasonably be expected to have knowledge or to which the holder might reasonably be expected to have access and, where the Council so requires, the holder of the certificate shall comply with that request.
Penalty:
(a) in the case of a natural person—$50,000 or imprisonment for 10 years, or both; and
(b) in the case of a body corporate—$250,000.
(3) In a prosecution of a person for an offence under subsection (2) of failing to provide specified information to the Council, it is a defence if the person proves that he or she did not possess, and had no means of access to, that specified information.
PART IV—MEMBERSHIP, MEETINGS AND STAFF OF COUNCIL
Membership of Council
23. (1) The Council shall consist of the following members:
(a) a Chairperson;
(b) a member to represent each respective scheme participant;
(c) one member to represent the National Health and Medical Research Council;
(d) one member to represent both the Australian Environment Council and the Council of Nature Conservation Ministers;
(e) one member to represent the National Occupational Health and Safety Commission.
(2) Each member shall be appointed by the Minister with effect from such day as the Minister specifies in the instrument of appointment of that member.
(3) All members shall hold office as part-time members.
(4) The member to represent a particular scheme participant shall be nominated by the designated Minister in respect of that scheme participant.
(5) The member referred to in paragraph (1) (c) shall be nominated by the Minister principally responsible for matters relating to health and medical research.
(6) The member referred to in paragraph (1) (d) shall be nominated by the Minister principally responsible for matters relating to the protection of the environment.
(7) The member referred to in paragraph (1) (e) shall be nominated by the Minister principally responsible for matters relating to occupational health and safety.
(8) A member holds office, subject to this Act, for such period, not exceeding 3 years, as the Minister specifies in the instrument of appointment of the member, but is eligible for re-appointment.
(9) A person who has attained the age of 65 years shall not be appointed as a member.
(10) A person shall not be appointed as a member for a period that extends beyond the day on which the person will attain the age of 65 years.
(11) The Minister may, by instrument in writing, extend the appointment of a person as a member of the Council for a period that extends beyond
the time when the person attains the age of 65 years if the Minister is satisfied that there are exceptional circumstances that justify the extension of the appointment.
(12) Members hold office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined, in writing, by the Minister.
(13) A member may resign the office of member by writing signed by the member and delivered to the Minister, but the resignation is not effective until it is accepted by the Minister.
(14) The exercise of a power or the performance of a function of the Council is not affected by a vacancy or vacancies in the membership of the Council.
Representation of external Territories
Without, by implication, limiting the generality of the other functions of the Chairperson under this Act, the Chairperson shall represent the interests of any external Territory in any consideration by the Council of a matter that could affect that Territory.
Committees
(1) The Council may establish such committees as it thinks fit to assist it in carrying out any of its functions, and may abolish any such committee.
(2) A committee shall consist of such persons (whether members of the Council or not) as the Council from time to time appoints.
(3) The Council may give to a committee such directions as it thinks fit, including:
(a) directions as to the manner in which the committee is to carry out its functions; and
(b) directions with respect to the procedure to be followed in relation to meetings of the committee, including directions with respect to:
(i) the convening of meetings of the committee;
(ii) the number of members of the committee to constitute a quorum;
(iii) the appointment of a member of the committee to preside at meetings of the committee; and
(iv) the manner in which questions arising at a meeting of the committee shall be decided.
Termination etc. of appointments
(1) The Minister may terminate the appointment of a member for misbehaviour or for physical or mental incapacity.
(2) If a member:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b) is absent, except with the leave provided for in section 27, from 3 consecutive meetings of the Council; or
(c) fails, without reasonable excuse, to comply with an obligation imposed by section 28;
the Minister shall terminate the member’s appointment.
Leave of absence of members
(1) The Minister may grant leave of absence to the Chairperson on such terms and conditions as the Minister determines.
(2) The Chairperson may grant leave of absence to any other member on such terms and conditions as the Chairperson determines.
Disclosure of interests
(1) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Council shall, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Council.
(2) The disclosure shall be recorded in the minutes of the meeting and the member shall not, unless the Council or the Minister otherwise determines:
(a) be present during any deliberation of the Council with respect to that matter; or
(b) take part in any decision of the Council with respect to that matter.
(3) For the purpose of the making of such a determination in relation to the member who has made the disclosure, any member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation of the Council for the purpose of making the determination; or
(b) take part in the making by the Council of the determination.
(4) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Council in accordance with section 30 shall, as soon as practicable after the relevant facts have come to the member’s knowledge, disclose the nature of that interest to the Minister.
(5) A member who is required to make a disclosure under subsection (4) in respect of a matter shall not, unless the Minister otherwise determines, sign a document with respect to that matter in accordance with section 30.
Meetings of Council
(1) Subject to this section, meetings of the Council shall be convened by the Chairperson on his or her own motion or at the request of 2 or more other members.
(2) Each meeting shall be held at such time and at such place as the Chairperson determines.
(3) At a meeting of the Council, the number of members constituting a quorum is the number that is equal to two thirds of the number of members of the Council, or, if the number so calculated is not a whole number, the lowest whole number that exceeds that number.
(4) The Chairperson shall preside at all meetings of the Council, at which he or she is present.
(5) If the Chairperson is absent from a meeting of the Council, the members present shall appoint one of their number to preside at the meeting.
(6) A question arising at a meeting of the Council shall be determined by a majority of the votes of the members present and voting.
(7) The member presiding at a meeting of the Council has a deliberative vote and, in the event of an equality of votes, also has a casting vote.
(8) The Council shall keep a record of its proceedings.
(9) The procedure of the Council shall be as determined by the Council.
Resolutions without formal meetings
(1) If a majority of the members of the Council (being members who, if they were present at a meeting of the Council, would constitute a quorum) sign a document containing a statement that they are in favour of a resolution in terms set out in the document, a resolution in those terms shall be deemed to have been passed at a duly constituted meeting of the Council on the day on which the document was signed, or, if the members signed the document on different days, on the day on which the document was last signed by a member.
(2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more members shall together be deemed to constitute one document containing a statement in those terms signed by those members on the respective days on which they signed the separate documents.
Remuneration and allowances
(1) This section applies to members of the Council and members of committees.
(2) Subject to subsection (3), the person to whom this section applies shall be paid:
(a) such remuneration as is determined by the Remuneration Tribunal but, if no determination of that Tribunal is in force, such remuneration as is prescribed; and
(b) such allowances as are prescribed.
(3) If a person to whom this section applies is also:
(a) in the service or employment of, or an authority of, a State or of the Northern Territory on a full-time basis; or
(b) a person who holds or performs the duties of an office or position established by or under a law of a State or of the Northern Territory on a full-time basis;
the person shall not be entitled to remuneration under this Act.
(4) This section has effect subject to the Remuneration Tribunals Act 1973.
Acting appointments
32. (1) The Minister may appoint a person other than the Chemicals Co-ordinator to act as the Chairperson:
(a) during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chairperson is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office of Chairperson.
(2) The Minister shall, at the request of the person or body that nominated a person to be a member, appoint a person nominated by that first-mentioned person or body to act as that member:
(a) during a vacancy in the office of that member, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when that member is absent from Australia or is, for any reason, unable to perform the duties of the office.
(3) A person appointed under subsection (1) or (2) to act during a vacancy in the office of Chairperson or of a member, as the case may be, shall not continue so to act for more than 12 months.
(4) Anything done by or in relation to a person purporting to act as the Chairperson or as a member other than the Chairperson is not invalid on the grounds that:
(a) the occasion for the person’s appointment had not arisen;
(b) there is a defect or irregularity in connection with the person’s appointment;
(c) the person’s appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.
Chemicals Co-ordinator
(1) There shall be a Chemicals Co-ordinator.
(2) The Chemicals Co-ordinator shall be the holder of an office in the Department that is designated for the purpose by the Secretary of the Department and shall hold office during the Secretary’s pleasure.
(3) The Chemicals Co-ordinator shall, subject to the directions of the Council, act as the executive officer of the Council and, as such:
(a) shall arrange and supervise all undertakings necessary to permit the Council to exercise its powers and perform its functions under this Act; and
(b) shall direct the persons made available by the Department in the performance of work for the Council.
Other staff and consultants
(1) The Council shall arrange with the Secretary to the Department for sufficient resources (including personnel) to be made available to the Council to enable it to perform its functions effectively.
(2) The Council may, on behalf of the Commonwealth, engaged as consultants to the Council persons having suitable qualifications and experience.
(3) The terms and conditions of engagement of the persons engaged under subsection (1) are such as are determined by the Council.
(4) While a person is performing services for the Council under an arrangement under subsection (1) or by reason of an engagement under subsection (2), the person shall perform those services in accordance with the directions of the Chemicals Co-ordinator, and shall be deemed to be a member of the staff of the Council for all purposes of this Act.
PART V—MISCELLANEOUS
Exportation of chemical products
(1) The Council may, upon the application, in writing, of a person wishing to export a chemical product to a foreign country, and, if the person is not the holder of a certificate of clearance in respect of that chemical product, after informing in writing the holder of that certificate of the name of the applicant and the name of any foreign country to which the applicant proposes to export that chemical product, provide to the person or to the government of that country or to any authority of that country specified by the person, a certificate setting out the findings (if any) of the Council in relation to such matters respecting the chemical product as are required to be established for the purposes of that exportation.
(2) Where the Council becomes aware that a chemical product:
(a) in respect of which an application for a clearance has been refused or a clearance has been withdrawn; or
(b) the clearance of which is subject to conditions significantly limiting the use of the chemical;
is proposed to be exported to a foreign country, the Council may, on its own motion, inform a body established in that country and having functions similar to its own functions that the application has been so refused, that the clearance has been so withdrawn or that the clearance of the chemical product has been made subject to such conditions and of the reasons for that refusal, withdrawal or imposition of conditions.
False or misleading information etc.
(1) A person shall not:
(a) in connection with an application under section 12 or 13;
(b) in compliance or purported compliance with a requirement of the Council under subsection 14 (1) or 22 (2) or with subsection 22 (1); or
(c) in response to a notice under subsection 17 (1);
give to the Council information, whether oral or in writing, or documents, that the person knows to be false or misleading in a material particular.
Penalty:
(a) in the case of a natural person—$50,000 or imprisonment for 10 years, or both;
(b) in the case of a body corporate—$250,000.
(2) Subsection (1) does not apply to a document if, at the time when the person gives it to the Council, the person informs the Council that it is false or misleading in a material particular and specifies in what respect it is, to the person’s knowledge, false or misleading in a material particular.
Power to seek information
A person is not excused from giving information to the Council in compliance with a requirement under subsection 14 (1) or 22 (2) on the ground that the information might tend to incriminate the person or make the person liable to a penalty but the information given by that person is not admissible in any criminal proceedings except a proceeding against the person for an offence against section 36.
Holders of certificates of clearance
(1) Upon the death of:
(a) a person to whom a certificate of clearance in respect of a chemical product has been granted and who has not ceased, by virtue of this section or of a withdrawal of the clearance of the chemical product, to be the holder of that certificate of clearance; or
(b) a person who is the holder of the certificate of clearance by virtue of a previous application of this section;
the legal personal representative of the estate of the person who has died:
(c) shall be taken to be the holder of that certificate of clearance for all purposes of this Act; and
(d) shall, as soon as practicable, notify the Council, in writing of the death.
(2) Where:
(a) a person to whom a certificate of clearance in respect of a chemical product has been granted and who has not ceased, by virtue of this section or of a withdrawal of the clearance of the chemical product, to be the holder of that certificate of clearance; or
(b) a person who is the holder of the certificate of clearance by virtue of a previous application of this section;
becomes bankrupt, the person who becomes, under the Bankruptcy Act 1966, the trustee in bankruptcy of the estate of the first-mentioned person:
(c) shall, immediately upon becoming trustee in bankruptcy, be taken to be the holder of the certificate of clearance for the purposes of this Act; and
(d) shall, as soon as practicable thereafter, notify the Council, in writing, of the bankruptcy.
(3) Where:
(a) a body corporate to which a certificate of clearance in respect of a chemical product has been granted and which has not ceased, by virtue of this section or of a withdrawal of the clearance of the chemical product, to be the holder of that certificate of clearance; or
(b) a body corporate that is the holder of the certificate of clearance by virtue of a previous application of this section;
is being wound up, the person appointed to be the liquidator of the body corporate:
(c) shall, immediately upon being so appointed, be taken to be the holder of the certificate of clearance for all purposes of this Act; and
(d) shall, as soon as practicable thereafter, notify the Council, in writing, of the winding up.
(4) Where a person agrees to dispose of a business relating to the manufacture, distribution or sale of a chemical product and it is agreed that the disposal of that business shall include a disposal of the certificate of clearance in respect of that chemical product:
(a) the person who acquires that business shall be taken to be the holder of the certificate for all purposes of this Act with effect from the day the person acquires the business; and
(b) the person shall thereupon inform the Council that the person has, by reason of that agreement, become the holder of that certificate of clearance.
(5) If, at any time, the Council is satisfied that it has not been kept informed of any transference of a certificate of clearance in respect of a chemical product in accordance with this section, the Council may withdraw clearance of that chemical product by revoking the certificate of clearance.
(6) Where, under subsection (5) or any other provision of this Act, the Council decides to withdraw the clearance of a chemical product by revoking the certificate of clearance in respect of that product, the person who was, immediately before that withdrawal, the holder of that certificate of clearance shall be taken, for all purposes of this Act other than the making of an application under section 41 for review of that decision, to have ceased to be the holder of that certificate of clearance.
Conduct by directors, servants or agents
39. (1) Where it is necessary, for the purposes of this Act, to establish the state of mind of a body corporate in respect of conduct engaged in, or deemed by subsection (2) to have been engaged in, by the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
(2) Any conduct engaged in on behalf of the body corporate:
(a) by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;
shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
(3) Where it is necessary, for the purposes of this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (4) to have been engaged in by the person, it is sufficient to show that a servant or agent of the person, being a servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
(4) Conduct engaged in on behalf of a person other than a body corporate:
(a) by a servant or agent of the person within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;
shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.
(5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose.
(6) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
Fees
(1) The regulations may prescribe fees, or a method of ascertaining fees, to be paid to the Commonwealth in respect of:
(a) applications for clearances;
(b) applications for the variation of conditions to which clearances are subject; or
(c) applications for the provision of certificates to the governments of, or to authorities of, foreign countries for exportation purposes.
(2) Fees prescribed in respect of applications referred to in subsection (1) are due and payable in such manner and at such time or times as are prescribed.
(3) Where a fee that is required to be paid at the time of making an application is not so paid, the application shall be taken not to have been duly made.
(4) Where a fee that is required to be paid by a particular date after the making of an application is not paid by that date, the application shall, at that date, be taken to have been withdrawn, but the withdrawal of the application does not affect any liability for the payment of any fee in respect of work done in respect of the application before it is taken to have been so withdrawn.
(5) The regulations may prescribe circumstances in which the Council may, in its discretion, on behalf of the Commonwealth, waive fees that would otherwise be payable under this section.
Review of decisions
(1) Subject to the Administrative Appeals Tribunal Act 1975, applications may be made to the Administrative Appeals Tribunal:
(a) by an applicant for a clearance of a chemical product, for review of a decision by the Council under section 15 to grant clearance of the product subject to particular conditions;
(b) by an applicant for a clearance of a chemical product, for review of a decision by the Council under section 15 to refuse that application;
(c) by the holder of a certificate of clearance in respect of a chemical product, for review of a decision by the Council under section 16 to refuse an application to vary the conditions to which clearance of that product is subject;
(d) by the holder of a certificate of clearance in respect of a chemical product, for review of a decision by the Council under section 17 to withdraw the clearance;
(e) by the holder of a certificate of clearance in respect of a chemical product, for review of a decision by the Council under section 17 to vary the conditions to which the clearance is subject; or
(f) by the holder of a certificate of clearance in respect of a chemical product, for review of a decision by the Council under section 38 to withdraw the clearance of that chemical product.
(2) In subsection (1), “decision” has the same meaning as in the Administrative Appeals Tribunal Act 1975.
Statement accompanying notification of decisions
(1) Where notice in writing of the making of a decision:
(a) of the kind referred to in paragraph 41 (1) (a) or (b) is given to the applicant for a clearance in respect of the chemical product concerned;
(b) of the kind referred to in paragraph 41 (1) (c) is given to the holder of a certificate of clearance in respect of the chemical product concerned; or
(c) of the kind referred to in paragraph 41 (1) (d), (e) or (f) is given to the person presently holding a certificate of clearance in respect of the chemical product concerned;
that notice shall include a statement to the effect that:
(d) subject to the Administrative Appeals Tribunal Act 1975, application may be made by or on behalf of that person to the Administrative Appeals Tribunal for review of the decision; and
(e) except where subsection 28 (4) of that Act applies, application may be made in accordance with section 28 of that Act by or on behalf of that person for a statement in writing setting out the findings on material questions of fact, referring to the evidence or other materials on which those findings were based and giving the reasons for the decision.
(2) Any failure to comply with a requirement of subsection (1) in relation to a decision does not affect the validity of the decision.
Documents and samples become Commonwealth property
All documents and samples provided to the Council for any purpose of this Act become, upon being so provided, the property of the Commonwealth and may, subject to section 20, be dealt with or disposed of in any manner that the Council considers appropriate.
Delegation
(1) The Council may, by signed instrument, delegate to a committee or to the Chemicals Co-ordinator or another member of the staff of the Council, all or any of its powers and functions under this Act other than the power of delegation.
(2) The Chemicals Co-ordinator may, by signed instrument, delegate to another member of the staff of the Council, all or any of the powers and functions of the Chemicals Co-ordinator under this Act other than the power of delegation.
Exemption from suit
(1) No action of proceeding lies against the Commonwealth, a member of the Council or a person assisting the Council in the performance of its functions for any loss or injury directly or indirectly sustained:
(a) by reason of the use of a chemical product in respect of which a clearance has been granted by the Council; or
(b) by reason of an inability to use, or to use in a particular manner, a chemical product in respect of which a clearance, or a clearance permitting its use in that particular manner, has been refused by the Council.
(2) Where an action is instituted against a person responsible for the manufacture, distribution or sale of a chemical product in respect of which a clearance has been granted by the Council in relation to an injury directly or indirectly sustained by reason of the use of that chemical product, it shall not be a defence to that action that the chemical product has been so cleared.
Substances that are already in use etc.
(1) Where any substance or mixture of substances that would be a chemical product for the purposes of this Act was authorised for use, subject to particular conditions, in a particular State or Territory that became a scheme participant for the purposes of this Act immediately before the day that State or Territory became a scheme participant, this Act shall have effect, with effect from and including that day, as if there were in existence a certificate of clearance issued under this Act and having effect from that day permitting use of that substance or mixture of substances in that State or Territory subject to compliance with those conditions.
(2) Where an application for registration, or variation of the conditions of use, of a substance or mixture of substances that would be a chemical product for the purposes of this Act had been made to the registering authority of a particular State or Territory before the day on which that State or Territory became a scheme participant but that application had not been determined before that day, this Act shall not affect the consideration of that application but any registration, or variation of the conditions of use, of that substance or mixture of substances in that State or Territory resulting from the determination of that application shall, for the purposes
of subsection (1), be treated as if it had had effect immediately before that State or Territory became a scheme participant.
(3) Where, before the commencement of this Act:
(a) application has been made either to the body known as the Technical Committee on Agricultural Chemicals or to the body known as the Technical Committee on Veterinary Drugs for a clearance of a substance or a mixture of substances for use in Australia or a part thereof, or for the variation of the conditions to which such a clearance is subject, but that application had not been finally dealt with before that commencement; and
(b) that substance, or mixture of substances, would be an agricultural chemical product or a veterinary chemical product for the purposes of this Act;
then, for the purpose of enabling the Council to deal with that application:
(c) that application shall be deemed, in the case of an application for a clearance, to have been duly made to the Council under section 12, and, in the case of an application for a variation of conditions to which a clearance is subject, to have been duly made to the Council under section 13; and
(d) in so far as the application relates to the use of that substance or mixture of substances in a particular State or Territory, that State or Territory shall be deemed, subject to subsection (4), to be, and at all times since the making of that application to have been, a scheme participant within the meaning of this Act.
(4) To the extent that an application referred to in paragraph (3) (a) deals with the use of a chemical product in a State or Territory that has not, at the time when that application is finally determined, become a scheme participant, that application shall be taken to have been withdrawn.
Annual reports
47. (1) The Council shall, as soon as practicable after 30 June 1989 and each subsequent 30 June, prepare and give to the Minister a report of its operations during the year ending on that date and give a copy of that report to the designated Minister in respect of each scheme participant for such purposes as the designated Minister thinks appropriate including, so far as a scheme participant other than the Australian Capital Territory is concerned, the purpose of tabling the report in the House, or each of the Houses, of the legislature of that scheme participant.
(2) Without limiting the generality of subsection (1), a report by the Council under this section in relation to a year shall include the following:
(a) particulars of the number of applications made to the Council under sections 12 and 13 during the year;
(b) particulars of the number of applications so made that were disposed of during that year and the manner of their disposal;
(c) particulars of the number of reconsiderations initiated by the Council under section 17 during the year;
(d) particulars of the number of reconsiderations so initiated that were disposed of during the year and of the manner of their disposal;
(e) particulars of the number of applications made to the Administrative Appeals Tribunal during the year for review of decisions of the Council;
(f) particulars of the results of the applications made to the Administrative Appeals Tribunal that were determined during the year;
(g) an appraisal of the efficacy of the evaluation process having particular regard to any problems encountered in the use of chemical products during the year;
(h) recommendations for changes in the laws of the Commonwealth or of a scheme participant, or for administrative action that, as a result of the performance of its functions, the Council considers should be made.
(3) The Council shall ensure that any report under this section does not include any material the exclusion of which is necessary to protect a trade secret or other commercially confidential information.
(4) The Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
(5) In this section, “year” includes the period commencing on the commencement of this Act and ending on 30 June 1989.
Cessation of operation of Act
(1) This Act, unless sooner repealed, shall cease to be in force at the expiration of a period of 5 years after:
(a) if the day fixed by Proclamation for the purposes of section 2 is a 1 July—the day so fixed; or
(b) if the day so fixed is not a 1 July—the 1 July next following the day so fixed.
(2) For the purposes of section 8 of the Acts Interpretation Act 1901, when this Act ceases to be in force by virtue of subsection (1) of this section, it shall be deemed to have been repealed by an Act other than this Act.
Regulations and orders
(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, but without limiting the generality of subsection (1), the regulations may make provision for or in relation to:
(a) the analysis of samples of chemical products supplied to the Council under this Act;
(b) the inspection of premises where chemical products in respect of which clearances have been sought or granted are manufactured;
(c) prescribing penalties not exceeding $1,000 for offences against the regulations; or
(d) subject to subsection (3), empowering the Minister to make the orders not inconsistent with the regulations with respect to any matter for or in relation to which provision may be made by the regulations.
(3) An order shall not be made prescribing any penalty.
(4) An order is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.
SCHEDULE Subsection 4 (3)
FORM OF AGREEMENT TO BE ENTERED INTO BETWEEN COMMONWEALTH AND A STATE OR THE NORTHERN TERRITORY
AN AGREEMENT made the ............................day of............................1988 BETWEEN THE COMMONWEALTH OF AUSTRALIA (hereinafter referred to as “the Commonwealth”) of the first part and the STATE OF ............................(hereinafter referred to as “the State”) of the second part.
WHEREAS:
a. each State and the Northern Territory of Australia has enacted or proposes to enact legislation that provides for the registration of agricultural and veterinary chemical products and prohibits the sale, use and distribution of such chemical products unless they are registered;
b. two committees, known as the Technical Committee on Agricultural Chemicals and the Technical Committee on Veterinary Drugs respectively, comprising representatives of Commonwealth, State and Northern Territory Governments and other bodies presently make recommendations with respect to the registration of agricultural and veterinary chemical products; and
c. the Commonwealth, the States and the Northern Territory of Australia have reached agreement on a co-operative scheme for the uniform evaluation and clearance of such chemical products.
NOW IT IS HEREBY AGREED as follows:
In this agreement, unless the contrary intention appears—
‘certificate of clearance’, in respect of a chemical product means a certificate issued under the Commonwealth legislation proposed in clause 3, clearing the chemical product for registration in particular States and Territories;
‘chemical product’ means an agricultural chemical product or a veterinary chemical product;
‘clearance’, in respect of a chemical product, means the clearance of that chemical product for registration in particular States and Territories as evidenced by the issue of a certificate of clearance in respect of the chemical product;
‘Council’ means the Australian Agricultural and Veterinary Chemicals Council, the body to be established in accordance with clause 3;
‘Commonwealth law’ means legislation of the Commonwealth Parliament enacted pursuant to clause 3 and any subordinate legislation made under that law;
SCHEDULE—continued
Commonwealth Minister’ means the Minister of State for Primary Industries and Energy or any other Minister acting on behalf of or for the time being acting for that Minister;
‘State law’ means ....................................of the State and any subordinate legislation made under that law.
In this agreement, unless the contrary intention appears—
(a) words importing a gender include every other gender; and
(b) words in the singular number includes the plural and words in the plural number include the singular.
The Commonwealth shall take such steps as are appropriate to secure the passage of Commonwealth legislation that shall establish a Council the membership of which shall include a nominee of each State or Territory and that shall have the following functions:
(a) to grant or withdraw clearances for the registration of chemical products for use in States and Territories for specified purposes under specified conditions;
(b) to determine the conditions to which such clearances are subject or to vary such conditions;
(c) to obtain advice from other bodies concerning the granting or withdrawing of such clearances or the determination or variation of such conditions;
(d) to evaluate the effects of the use of chemical products in Australia and the external Territories;
(e) to develop, in consultation with the National Health and Medical Research Council and the National Occupational Health and Safety Commission, codes of practice, standards and guidelines for, and to recommend precautions to be taken in, the use of chemical products in Australia and the external Territories;
(f) to collect, interpret, disseminate and publish information relating to chemical products and their use;
(g) to encourage and facilitate the application and use of results of evaluation and testing of chemical products;
(h) to exchange information relating to chemical products and their use with overseas bodies having functions similar to the Council’s functions;
(j) when requested by the Commonwealth Minister, or on its own motion, to report to or advise the Commonwealth Minister of any matter relating to chemical products or arising in the course of the the performance of its functions;
(k) in connection with the performance of its functions under paragraphs (a) to (j) (inclusive), to consult with persons and organisations concerned with chemical products and their use.
SCHEDULE—continued
The Commonwealth shall not take action to amend or repeal the Commonwealth law before consulting the State on the terms of the amendment or repeal.
The State shall, as soon as practicable after the passage of the Commonwealth law and after consulting with the Commonwealth in accordance with sub-clause 6 (1), take such action as may be appropriate to cause the State law to be amended with the effect that—
(a) where the Council issues a certificate of clearance in relation to a chemical product, the chemical product shall, except as provided in paragraphs (b) and (c), be registered upon application in accordance with the State law upon such conditions, if any, and for such period, if any, as the Council recommends;
(b) paragraph (a) does not apply to a chemical product intended for use in the control or eradication of a pest or disease—
(i) that does not occur or, where it occurs, is not of economic significance in the State; or
(ii) in respect of which a control or eradication program is being undertaken in the State and use of the chemical could obscure evidence of the presence of the pest or disease;
(c) paragraph (a) does not apply to a chemical product the likely use of which, in the opinion of a chemical registration authority of the State—
(i) would not be desirable in relation to a farming method that is practised in the State;
(ii) would encourage increase in the State of a population of organisms that are resistant to the chemical; or
(iii) would not be desirable in relation to climatic or soil conditions;
(d) except as provided in paragraphs (e) and (f), a chemical product shall not be registered under the State law otherwise than in accordance with a certificate of clearance issued in relation to the chemical product by the Council;
(e) paragraph (d) does not apply to a chemical product that has been cleared under the Commonwealth law for a particular use or uses and in relation to which State registration is sought for another use that is not inconsistent with the first-mentioned use or uses, being registration for a use for the purpose of facilitating the small scale production of specialised crops or for small scale domestic, industrial or experimental use in the State; and
(f) paragraph (d) does not apply to a chemical product that, in the opinion of the State, is intended for use in exceptional circumstances.
Pending amendment of the State law pursuant to clause 5, the State shall take such action as may be appropriate within present State law to
SCHEDULE—continued
give such effect as is possible, before amendment of State legislation, to clause 5 of this agreement by ........................................................................
The State shall not take action to amend or repeal the State law enacted pursuant to clause 5 of this agreement before consulting the Commonwealth on the terms of the amendment or repeal.
The State Minister responsible for administration of matters relevant to this agreement shall be the Minister for.................................or any other Minister acting on behalf of, or for the time being acting for, that Minister.
The Commonwealth and the State may, by written agreement, vary or amend the terms of this agreement.
IN WITNESS WHEREOF this agreement has been executed as at the day and year first written above.
SIGNED for and on behalf of the COMMONWEALTH OFAUSTRALIA by......................................................in the presence of
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SIGNED for and on behalf ofthe STATE OF………………….by……………………………….in the presence of—