Div 1Variations by holder

Division 1—Variations by holder Subdivision A—Non‑significant variations 159  Holder may make non‑significant variations of approved arrangement  (1) The holder of an approved arrangement may implement a variation, or 2 or more variations, of the approved arrangement if:  (a) the variation is, or the variations are, not an alternative regulatory arrangement within the meaning of subsection 379B(1); and  (b) the holder and the Secretary consider that the variation, or the combined effect of the variations, is not significant (having regard to the matters referred to in section 164).  (2) If the holder of an approved arrangement implements one or more variations of the approved arrangement under subsection (1), the holder must, as soon as practicable after doing so, make a written record of each variation (by varying the text of the approved arrangement or creating a separate document) and the reasons for the variation. Note: The Secretary may suspend or revoke the approved arrangement if the holder contravenes this subsection (see paragraphs 171(1)(k) and 179(1)(k)).  (3) If:  (a) the holder of an approved arrangement implements a variation of the approved arrangement under subsection (1); and  (b) the holder makes a written record of the variation as required by subsection (2); then, despite any other provision of this Act, a person does not commit an offence, and is not liable to a civil penalty, only because the variation was implemented before the written record was made.  (4) The holder of an approved arrangement is liable to a civil penalty if the holder contravenes subsection (2). 160  Date of effect of varied approved arrangement   If:  (a) the holder of an approved arrangement implements a variation of the approved arrangement under subsection 159(1); and  (b) the holder makes a written record of the variation as required by subsection 159(2); the approved arrangement is taken to have been varied on the date the record of the variation was made under subsection 159(2). Subdivision B—Significant variations and variation of conditions 161  Application by holder for approval of approved alternative regulatory arrangement or other significant variation or to vary conditions  (1) The holder of an approved arrangement may apply to the Secretary:  (a) to approve a variation of the approved arrangement to implement an alternative regulatory arrangement approved under paragraph 379C(1)(a); or  (b) to approve any other variation, or variations, of the approved arrangement if the holder and the Secretary consider that the variation, or the combined effect of the variations, is significant (having regard to the matters referred to in section 164); or  (c) to vary the conditions of the approved arrangement. Note: Section 377 sets out requirements for applications. A single application may be made to approve a variation of an approved arrangement and to renew the approved arrangement.  (2) If the Secretary receives an application under subsection (1) to approve a variation, or vary conditions, the Secretary must decide:  (a) to approve the variation or vary the conditions; or  (ab) to approve the variation, or vary the conditions, with additional conditions or variations of conditions; or  (b) to refuse to approve the variation or vary the conditions. Note 2: If the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary is taken to have refused the application at the end of that period (see subsection 379(2)). Note 3: A decision to approve the application with additional conditions or variations of conditions, or to refuse the application, is a reviewable decision (see Part 2 of Chapter 11) and the Secretary must give the holder written notice of the decision (see section 382). Approval with additional conditions or variations of conditions  (2A) The Secretary may make a decision under paragraph (2)(ab) only if the Secretary reasonably believes that the additional conditions or variations of conditions are necessary:  (a) to ensure the integrity of a kind of prescribed goods covered by the approved arrangement; or  (b) to ensure that export operations covered by the approved arrangement will be carried out in accordance with the approved arrangement; or  (c) to ensure compliance with a condition of the approved arrangement; or  (d) to address circumstances relating to a kind of export operations carried out in relation to a kind of prescribed goods covered by the approved arrangement that have changed or will change; or  (e) to ensure:  (i) compliance with the requirements of this Act in relation to the export operations and goods covered by the approved arrangement; or  (ii) that importing country requirements relating to the export operations and goods covered by the approved arrangement are, or will be, met; or  (f) to correct a minor or technical error; or  (g) for any other reason prescribed by the rules.  (2B) The Secretary must not make a decision under paragraph (2)(ab) unless the Secretary has given a written notice to the holder of the approved arrangement in accordance with subsection (2C).  (2C) The written notice must:  (c) request the holder of the approved arrangement to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed additional conditions or variations of conditions should not be made; and  (d) include a statement setting out the holder’s right to seek review of a decision made under paragraph (2)(ab). Refusal  (3) The Secretary may refuse to approve the variation, or vary the conditions, if the Secretary is not satisfied, having regard to any matter that the Secretary considers relevant, of one or more of the following:  (i) all relevant Commonwealth liabilities of the holder of the approved arrangement have been paid or are taken to have been paid; or  (ii) if one or more relevant Commonwealth liabilities of the holder have not been paid or are not taken to have been paid—the non‑payment is due to exceptional circumstances;  (b) carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement as proposed to be varied will ensure:  (ii) that importing country requirements relating to those export operations and goods will be met; and  (iii) the integrity of the goods;  (c) any other requirement prescribed by the rules is met. Note 1: For the purposes of paragraph (3)(a), a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances (see section 431). Note 2: The holder of the approved arrangement may commit an offence or be liable to a civil penalty if: (a) a variation of the approved arrangement, or of the conditions of the approved arrangement, referred to in subsection (1) is implemented; and (b) the variation has not been approved, or the holder has not been given notice of the approval (see section 163). 162  Notice of variation Approval  (1) If the Secretary approves a variation of an approved arrangement or varies the conditions of an approved arrangement under paragraph 161(2)(a), the Secretary must give the holder of the approved arrangement written notice of the approval or variation.  (a) details of the variation that has been approved;  (b) if the variation is of the conditions of the approved arrangement—the varied conditions; Approval with additional conditions or variations of conditions  (3) If the Secretary approves a variation of an approved arrangement, or varies the conditions of an approved arrangement, with additional conditions or variations of conditions under paragraph 161(2)(ab), the Secretary must give the holder of the approved arrangement written notice of the approval or variation.  (4) The notice must state the following:  (a) if the Secretary approved a variation of the approved arrangement—the details of the variation;  (b) if the Secretary varied the conditions of the approved arrangement as requested in the application under subsection 161(1)—the varied conditions;  (d) the date the variation, varied conditions or additional conditions take effect, which must not be before the earlier of the following:  (i) the day after any response requested in the written notice (the show cause notice) given to the holder under subsection 161(2B) is received by the Secretary; 163  Varied approved arrangement must not be implemented unless variation approved etc.  (1) The holder of an approved arrangement contravenes this subsection if:  (a) a variation of the approved arrangement, or of the conditions of the approved arrangement, referred to in subsection 161(1) is implemented; and  (i) the variation has not been approved under paragraph 161(2)(a) or 161(2)(ab); or  (ii) the variation has been approved under paragraph 161(2)(a) or 161(2)(ab) but the Secretary has not given the holder notice of the approval under section 162. Note 1: The physical elements of an offence against subsection (2) are set out in this subsection (see section 370). Note 2: The Secretary may suspend or revoke the approved arrangement if the holder contravenes this subsection (see paragraphs 171(1)(k) and 179(1)(k)).  (2) The holder of an approved arrangement commits an offence if the holder contravenes subsection (1).  (3) The holder of an approved arrangement is liable to a civil penalty if the holder contravenes subsection (1). Subdivision C—Matters relating to whether proposed variation of approved arrangement is significant