This Order is the Export Control (Prescribed Goods—General) Order 2005.
1.03 Application of this Order
Unless the contrary intention appears, this Order is to be read as one with each other Order made under regulation 3 of the Export Control (Orders) Regulations 1982.
1.04 Purposes of this Order
The purposes of this Order are as follows:
(a) to prescribe general matters required or permitted, by the Export Control Act 1982, to be prescribed;
(b) to prescribe matters generally necessary or convenient to be prescribed for carrying out or giving effect to that Act, including:
(i) ensuring transparency and consistency in decision making;
(ii) the registration of establishments engaged in the preparation of prescribed goods for export;
(iii) the issue of export permits and government certificates;
(iv) the declaration of official marks and marking devices;
(v) the transmission of information and documents.
1.05 Interpretation
(1) In this Order:
Act means the Export Control Act 1982.
corporation means a legal person that is not an individual.
convicted has the meaning given by subsection 85ZM(1) of the Crimes Act 1914.
Export Control Order means a legislative instrument (regardless of whether it is called Order or Orders) made under regulation 3 of the Export Control (Orders) Regulations 1982.
Export Meat Orders means the Export Control (Meat and Meat Products) Orders 2005.
edible offal has the same meaning as in the Export Meat Orders.
foreign country identification mark—see subsection 13.06(1).
government certificate means:
(a) a certificate about prescribed goods the issue of which is authorised by an Export Control Order, being a certificate as to:
(i) matters about which a country requires certification before the goods may be imported into that country from Australia; or
(ii) requirements of the Act that must be satisfied before the goods may be exported from Australia; or
(iii) matters concerning goods of the kind that are to be exported; or
(b) a certificate about goods other than prescribed goods, being a certificate as to:
(i) matters about which a country requires certification before the goods may be imported into that country from Australia; or
(ii) matters concerning goods of the kind that are to be exported.
importing country authority, for goods being, or to be, exported, means the authority responsible for regulating the import of the goods into the country to which the goods are being or are to be exported.
meat and meat products have the same respective meanings as in the Export Meat Orders.
narcotic goods has the same meaning as in the Customs Act 1901.
occupier:
(a) in relation to a registered establishment, means the individual, person or other legal entity in whose name the establishment is registered; or
(b) in relation to an establishment that is not registered, means:
(i) the individual, corporation or other legal entity that operates the business that prepares prescribed goods at the establishment; or
(ii) if the operator of that business cannot be ascertained, the person in charge of operations at the establishment.
prescribed goods—see section 3 of the Act.
Note: In section 3 of the Act, prescribed goods is defined as follows:
Note: prescribed goods means goods, or goods included in a class of goods, that are declared by the regulations to be prescribed goods for the purposes of this Act.
Note: The prescription of prescribed goods is in the relevant Export Control Order for the kind of goods concerned, except for animal food and pharmaceutical material. For those goods, see section 1.07 of this Order.
Note: Anything that can, under the Act, be done by the regulations can also be done by Order, except the creation of an offence—see the Act, paragraph 25(2)(g) and subsections 25(3) to (8).
rabbit meat has the same meaning as in the Export Control (Rabbit and Ratite Meat) Orders 1985.
rabbit meat product has the same meaning as in the Export Control (Rabbit and Ratite Meat) Orders 1985.
ratite meat has the same meaning as in the Export Control (Rabbit and Ratite Meat) Orders 1985.
ratite meat product has the same meaning as in the Export Control (Rabbit and Ratite Meat) Orders 1985.
registered means registered under this Order.
relevant Commonwealth liability, in relation to an establishment, means a liability to the Commonwealth for:
(a) a fee payable under the Act; or
(b) a fee for a service by an authorised officer; or
(c) a fee in respect of the registration of an establishment, performed at, or in respect of, the establishment; or
(d) a fee payable under the Australian Meat and Livestock Industry Act 1997; or
(e) charge or levy the collection of which is provided for by the Export Inspection and Meat Charges Collection Act 1985, the Meat Export Charge Collection Act 1984 or the Primary Industries Levies and Charges Collection Act 1991; or
(f) a penalty for failure to pay such a charge or levy.
serious offence means an offence against a law of the Commonwealth or a State or Territory for which the maximum penalty is a period of imprisonment or a fine of 10 penalty units or more.
Timor Sea Maritime Boundaries Treaty means the Treaty between Australia and the Democratic Republic of Timor‑Leste Establishing their Maritime Boundaries in the Timor Sea done at New York on 6 March 2018, as in force at the commencement of this definition.
Note: The Timor Sea Maritime Boundaries Treaty could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
wild game animal has the same meaning as in the Export Control (Wild Game Meat and Wild Game Meat Products) Orders 2010.
wild game meat has the same meaning as in the Export Control (Wild Game Meat and Wild Game Meat Products) Orders 2010.
wild game meat product has the same meaning as in the Export Control (Wild Game Meat and Wild Game Meat Products) Orders 2010.
(2) For the purposes of this Order, a person is taken to manage or control the operations carried on, or to be carried on, in an establishment if he or she has, or would have:
(a) authority to direct the operations, or an important or substantial part of the operations; or
(b) authority to direct a person who has, or would have, authority of the kind referred to in paragraph (a) in the exercise of that authority or proposed authority.
1.06 Application of Orders to partnerships
(1) A provision of an Export Control Order applies, in relation to anything to be done under it, to a partnership as if the partnership were a person, but with the modifications set out in this section.
(2) If the provision would otherwise require or permit something to be done by the partnership, the thing may be done by 1 or more of the partners on behalf of the partnership.
(3) An obligation that would otherwise be imposed on the partnership by the provision is imposed on each partner instead, but may be discharged by any of the partners.
(4) The partners are jointly and severally liable to pay an amount that would otherwise be payable by the partnership under the provision.
(5) If the provision is a penal provision, a contravention of it that would otherwise be committed by the partnership is taken to have been committed by each partner who:
(a) did the relevant act or made the relevant omission; or
(b) aided, abetted, counselled or procured the relevant act or omission; or
(c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the partner).
(6) For the purposes of subsection (5):
(a) to establish that a partnership engaged in a particular conduct, it is sufficient to show that the conduct was engaged in by a partner:
(i) in the ordinary course of the business of the partnership; or
(ii) within the scope of the actual or apparent authority of the partner; and
(b) to establish that a partnership had a particular state of mind when it engaged in that conduct, it is sufficient to show that the partner had the relevant state of mind.
(7) For the purposes of the provision, a change in the composition of a partnership does not affect the continuity of the partnership.
1.07 Declaration of certain prescribed goods
(1) For the purposes of the definition of prescribed goods in section 3 of the Act, the following are declared to be prescribed goods:
(a) animal food;
(b) pharmaceutical material (other than narcotic goods).
Note: Goods are normally declared to be prescribed goods in the Export Control Order that applies to them. There is no other Export Control Order applicable to goods of those kinds.
(2) However, only Part 3, Part 6, Part 8 and Part 17 of this Order apply to prescribed goods of those kinds.
(3) For the purposes of this section, Part 8 of the Prescribed Goods (General) Orders 1985 is taken to continue in force, and applies to prescribed goods that are animal food or pharmaceutical material.
(4) The following provisions of the Export Meat Orders apply to animal food that is meat, or a meat product, within the meaning of suborder 8.1 of those Orders:
(a) clause 3 of Schedule 4;
(b) paragraph 2.1(f) and subclause 8.2 of Schedule 7.
(5) The following provisions of the Export Meat Orders apply to pharmaceutical material that is meat, or a meat product, within the meaning of suborder 8.1 of those Orders:
(a) clause 4 of Schedule 4;
(b) paragraph 2.1(g) and subclause 8.2 of Schedule 7.
Part 2—Application of Export Control Orders
2.01 Export Control Orders not to apply to certain exports
(1) An expression used in this section that is also used in the Sea Installations Act 1987 has the same meaning in this section as in that Act.
(2) For the purposes of suborder (3) and paragraph (4)(f), a resources industry fixed structure or a resources industry mobile unit is installed in an area at a time if, assuming that the structure or unit were a sea installation and that the area were part of an adjacent area, the structure or unit would be taken under section 6 of the Sea Installations Act 1987 to be installed in an adjacent area at the time.
(3) For paragraphs (4)(a) and (f), a resources industry mobile unit that is not installed in an area is taken to be a ship.
(4) Neither this Order (other than Part 8) nor any other Export Control Order applies to prescribed goods to which any of the following paragraphs applies:
(a) goods that are ships’ stores, being goods for the use of the passengers and crew, or for the service of the ship, on a voyage from Australia;
(b) goods that are aircraft’s stores, being goods for the use of the passengers and crew, or for the service of the aircraft, on a flight from Australia;
(c) goods that have been imported into Australia and held in bond;
(d) goods that are imported into Australia and re‑exported in the same covering and under the same trade description as the covering and trade description in or under which they were imported;
(e) goods that are consigned to an external territory for consumption within the Territory;
(f) goods that are consigned to a resources industry fixed structure, or a resources industry mobile unit, that is installed within any of the following areas, for consumption on the structure or unit:
(i) the Greater Sunrise special regime area within the meaning of the Seas and Submerged Lands Act 1973;
(ii) the Greater Sunrise pipeline international offshore area within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006;
(iii) the area in or above the Bayu‑Undan Gas Field within the meaning of the Timor Sea Maritime Boundaries Treaty;
(iv) the Bayu‑Undan pipeline international offshore area within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006;
(v) the area in or above the Kitan Oil Field within the meaning of the Timor Sea Maritime Boundaries Treaty;
(g) goods that are exported in a consignment of no more than:
(i) for liquid goods—10 litres; or
(ii) for goods of any other kind—10 kilograms.
(5) Paragraph (4)(g) does not apply to the following goods:
(a) a live animal within the meaning of Part 3 of the Export Control (Animals) Order 2004;
(b) animal reproductive material within the meaning of that Order.
2.02 Export Control Orders not to apply to certain goods exported to New Zealand
(1) This Order, and any other Export Control Order, applies to prescribed goods that are being exported to New Zealand only if the goods are:
(a) prescribed grain as defined in the Export Control (Plants and Plant Products) Order 2011; or
(b) plants, or plant products for which a certificate is required by or under a law of New Zealand.
(2) Subsection (1) does not prevent the issue of a certificate for goods of a kind for which such a certificate is required by or under a New Zealand law.
(3) Such a certificate is to be issued in accordance with any Export Control Order that would, but for subsection (1), apply to the goods.
Part 3—Exemptions
3.01 Granting of exemption
The Secretary may exempt prescribed goods from specified provisions, or all provisions, of this Order or any other Export Control Order that applies to the goods:
(a) if the goods are a commercial sample and:
(i) in the case of goods that are liquid, their volume is no more than 50 litres; and
(ii) in the case of goods that are not liquid, their mass is no more than 60 kilograms; or
(b) if the goods are for experimental purposes; or
(c) in exceptional circumstances; or
(d) in special commercial circumstances.
3.02 Application for exemptions
(1) A person who seeks an exemption under this Part must apply for the exemption at least 10 working days, or any shorter period that the Secretary allows, before the proposed date of export or preparation of the goods.
(2) The application:
(a) must be in writing; and
(b) must specify the provisions of this Order, and of any other Export Control Order, from which exemption is sought; and
(c) must give the reason for seeking the exemption; and
(d) must contain enough information to allow the Secretary to identify the goods, including, if possible, the following information:
(i) the name and address of the person who intends to export the goods;
(ii) the name and address of the consignee, or the words ‘to order’;
(iii) the intended port of loading of the goods;
(iv) the intended ship and voyage number or airline flight number;
(v) the intended date of departure of the ship or aircraft onto which the goods are to be loaded;
(vi) the intended port of discharge of the goods;
(vii) if the country of origin of the goods is not Australia, their country of origin;
(viii) the foreign country of intended final destination of the goods;
(ix) the place where the goods can be inspected,
(x) the date on which the goods can be inspected;
(xi) if a government certificate is to be sought in respect of the goods, the State or Territory in which the certificate will be applied for;
(xii) the number allotted to the registered establishment in which processing of the goods last took place;
(xiii) the shipping or other identifying marks relating to the goods;
(xiv) if available, any identification number that appears on a container system unit and, in relation to that unit, an indication of the goods it will contain;
(xv) the number and kind of packages.
3.03 Grant and effect of exemptions
(1) If the Secretary grants the exemption, the Secretary must give a written instrument to the applicant setting out the terms of the exemption.
(2) The provision or provisions of this Order, or any other Export Control Order, specified in the instrument do not apply to, or in relation to, the goods specified in the instrument.
Part 4—Registered establishments
Division 4.1—Preliminary
4.01 Definitions for Part
In this Part:
liability undertaking means an undertaking to pay a relevant Commonwealth liability, and includes an undertaking entered into under order 19A of the Prescribed Goods (General) Orders 1985.
Division 4.2—How establishments become registered
4.02 Exception for certain ships
This Part does not apply to a ship that is used for the carriage of prescribed goods that are being:
(a) exported from Australia; or
(b) transported between Australian ports.
4.03 Application for registration
(1) The occupier of an establishment may apply in writing, in a form approved by the Secretary, for the registration of the establishment.
(2) The application must include:
(a) the name and business address of the occupier, and:
(i) if the occupier is a corporation—the name and address of the person, or each person, who is to manage or control the operations to be carried on in the establishment; or
(ii) if the occupier is a partnership—the names and addresses of the partners; and
(b) the location of the premises; and
(c) their external boundary; and
(d) if the premises are a ship:
(i) its name; and
(ii) its home port; and
(iii) the place in Australia where it can be inspected; and
(e) particulars of:
(i) export operations; and
(ii) other operations likely to affect the export operations;
to be carried on in the establishment; and
(f) if the occupier is an individual—subject to Part VIIC of the Crimes Act 1914, particulars of any serious offence of which he or she has been convicted; and
(g) if the occupier is a corporation—subject to Part VIIC of the Crimes Act 1914, particulars of any serious offence of which any person who is to manage or control the operations to be carried on in the establishment has been convicted; and
(h) if the occupier is a partnership—subject to Part VIIC of the Crimes Act 1914, particulars of any serious offence of which any of the partners has been convicted; and
(i) any other information required in the particular case by an Export Control Order.
Note: For the meaning of serious offence, see subsection 1.05(1).
4.04 Registration requirements for new establishments
(1) Subject to any other Export Control Order, the Secretary must register an establishment if:
(a) its registration has been applied for in accordance with section 4.03; and
(b) the establishment is constructed so as to comply with any Export Control Order that applies to the operations to be carried on in it; and
(c) if any other Export Control Order requires the equipment available or to be available in the establishment to be approved, the equipment has been, or will be, approved; and
(d) the equipment available or to be available in the establishment is adequate for the carrying on of those operations in an efficient and hygienic manner; and
(e) the laundry, first aid and safety services for authorised officers are adequate; and
(f) the export operations to be carried out in the establishment are compatible with one another; and
(g) operations, other than export operations, that are to be carried on in the establishment will not affect the hygienic preparation of prescribed goods; and
(h) any relevant Commonwealth liability has been paid; and
(i) the Secretary is satisfied that:
(i) if the occupier is an individual—he or she; or
(ii) if the occupier is a corporation—each person who is to manage or control the operations to be carried on in the establishment; or
(iii) if the occupier is a partnership—each of the partners;
is a fit and proper person; and
(j) the prescribed fee has been paid.
(2) If a relevant Commonwealth liability is payable in relation to the establishment, the liability is taken to have been paid for the purposes of paragraph (1)(h) if:
(a) the Secretary has entered into an arrangement for its payment with the occupier of the establishment; and
(b) there are exceptional circumstances; and
(c) the amount was payable to the Commonwealth before 29 April 1985.
(3) The Secretary must register the premises despite the non‑payment of a relevant Commonwealth liability if he or she is satisfied that:
(a) the applicant became the occupier before the relevant date; and
(b) none of the following persons:
(i) the occupier;
(ii) a person having a beneficial interest in the occupier;
(iii) if the occupier holds the premises of the establishment on a trust, a beneficiary of that trust;
was a party to an arrangement to avoid or delay payment of the liability; and
(c) any consideration for the right to occupy the establishment was calculated without regard to the possibility that the liability may be payable by the occupier.
(4) For paragraph (3)(a), the relevant date is:
(a) if the establishment was, on the date the applicant became the occupier, registered under the Export Control Orders made on 5 December 1983—13 August 1984; and
(b) in any other case—29 April 1985.
4.05 Who is a fit and proper person
(1) The Secretary may, in deciding whether a person is a fit and proper person for the purposes of the Act, the regulations, this Order or another Export Control Order, have regard to any of the following:
(a) subject to Part VIIC of the Crimes Act 1914, whether the person has been convicted of an offence against the Act, another law of the Commonwealth, or a law of a State or Territory;
(b) whether a relevant Commonwealth liability is payable by the person, either alone or jointly with another person or other persons;
(c) whether the person has made a false or misleading statement:
(i) in any application or notice under the Act, the regulations or an Export Control Order; or
(ii) otherwise, either orally or in writing, in relation to operations, or proposed operations, at a registered establishment, or a proposed registered establishment, or in any way relating to the export of prescribed goods;
(d) whether the person has failed to comply with any notice, instruction, condition or restriction under the Act, the regulations or an Export Control Order;
(e) whether the person, either alone or jointly with another person:
(i) has been refused a licence, permit or approval to export prescribed goods; or
(ii) has been granted such a licence, permit or approval that has been revoked, suspended or cancelled;
(f) any other relevant matter in relation to the person;
(g) whether an associate of the person is not a fit and proper person for the purposes of the Act, the regulations or an Export Control Order, having regard to any of the matters referred to in paragraphs (a) to (g).
(2) If a person has been charged with an offence, the Secretary may postpone deciding whether he or she is a fit and proper person until the charge is finally determined or withdrawn.
(3) In paragraph (1)(g) and subsection (2), a reference to an associate of a person (the person concerned) includes:
(a) a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of the person concerned or of any corporation of which the person concerned is an officer or employee, or in which the person concerned holds shares; and
(b) the spouse or de facto partner (within the meaning of the Acts Interpretation Act 1901) of the person concerned; and
(c) any other person who is or was:
(i) directly or indirectly concerned in; or
(ii) in a position to control or influence the conduct of;
a business or undertaking of the person concerned, or of a corporation of which the person concerned is an officer or employee, or in which the person concerned holds shares; and
(d) a corporation of which the person concerned, or any other person mentioned in paragraph (a), (b) or (c), is, or was at a relevant date, an officer or employee, or in which the person concerned or any of those other persons holds shares or held shares on a relevant date.
(4) For the purposes of paragraph (3)(d), relevant date means the date on which:
(a) an offence referred to in paragraph (1)(a) was, or is alleged to have been, committed; or
(b) a fee, charge, levy or penalty:
(i) was, or is alleged to have been, incurred; or
(ii) was, or is alleged to have been, due for payment; or
(iii) in the case of a penalty—was imposed or was due for payment; or
(c) a false or misleading statement referred to in paragraph (1)(c) was, or is alleged to have been, made; or
(d) the contravention referred to in paragraph (1)(d) occurred or is alleged to have occurred; or
(e) the licence, permit or approval referred to in paragraph (1)(e) was refused, revoked, suspended or cancelled or the conduct giving rise to the refusal, revocation, suspension or cancellation occurred, or is alleged to have occurred.
4.06 Undertakings to pay certain liabilities to Commonwealth
(1) This section applies if:
(a) an application has been made for the registration of an establishment; and
(b) a relevant Commonwealth liability has not been paid.
(2) For paragraph 4.04(1)(h), the amount of the liability is taken to have been paid if:
(a) the proposed occupier of the establishment has given a written undertaking to the Secretary to pay the amount, on terms agreed with the Secretary; and
(b) the Secretary considers that it is appropriate to accept the undertaking in the circumstances.
(3) For paragraph (2)(b), the Secretary must take into account:
(a) the financial position of the proposed occupier; and
(b) the nature and likely cost of the operations proposed to be carried on at the establishment; and
(c) whether the proposed occupier will be able to meet:
(i) the undertaking; and
(ii) the cost of the operations; and
(d) any other relevant considerations.
(4) Such an undertaking must include a term that the amount payable is to be reduced by any amounts paid by, or on behalf of, the person who incurred the fee, charge, levy or penalty to which the amount outstanding relates (the original debtor).
(5) An undertaking may be varied at any time by agreement between the Secretary and the proposed occupier.
(6) The Secretary may agree to a variation if:
(a) taking into account the matters mentioned in subsection (3), the Secretary considers that it is appropriate to agree to the variation in the circumstances; and
(b) the variation does not reduce the proposed occupier’s liability.
(7) The amount payable under an undertaking:
(a) is a debt due to the Commonwealth; and
(b) may be recovered in a court of summary jurisdiction.
(8) A payment by the proposed occupier under an undertaking:
(a) must be applied to reduce the amount outstanding; and
(b) is taken, for the purposes of paragraph 4.04(1)(h), to reduce, by the amount of the payment, the amount owed to the Commonwealth.
(9) However, the liability of the original debtor to pay the full amount of the amount outstanding is not affected by an undertaking under this section or by payments made under the undertaking.
(10) If the amount outstanding is made up of 2 or more amounts of a kind referred to in the definition of relevant Commonwealth liability, the Secretary may decide how payments under the undertaking are to be applied against the amounts.
(11) If the sum of payments made under the undertaking and by, or on behalf of, the original debtor exceeds the amount outstanding, the excess paid over the amount outstanding must be refunded to the proposed occupier.
4.07 Conditions of registration
(1) Compliance with the terms of any applicable liability undertaking (including any variation) is a condition of the registration of an establishment.
Note: Failure to comply with a condition of registration is a ground for suspension or revocation of that registration—see paragraph 4.25(b) and subparagraph 4.29(1)(g)(ii), respectively.
(2) For the purpose of ensuring that an establishment remains registered only if it continues to meet the criteria for its registration, the Secretary may impose a condition on its registration.
(3) Such a condition may be in the same terms as a law, of the State or Territory in which the establishment is located, that applies to an establishment of that kind.
4.08 Registration period
The registration of an establishment comes into force on the date on which the Secretary registers the establishment, or another date (if any) specified in the certificate of registration for the purpose, and remains in force (unless sooner revoked):
(a) if the certificate of registration specifies a period as the period for which the establishment will be registered—until the end of that period; or
(b) if the occupier notifies the Secretary in writing that the occupier wishes the registration to cease on a particular day and the day is after the Secretary receives the notice—until the end of that day; or
(c) if the occupier notifies the Secretary in writing that the occupier wishes the registration to cease, but does not specify a particular day, or specifies a day that is before the Secretary receives the notice—until the end of the day on which the Secretary receives the notice.
4.09 Number and certificate
If the Secretary registers an establishment, the Secretary must:
(a) allot a number to the establishment; and
(b) issue to the occupier a certificate of registration that specifies:
(i) the export operations for which the establishment has been registered; and
(ii) the number allotted to it; and
(iii) the period for which the establishment is registered.
4.10 Copy of certificate to be displayed
The occupier of a registered establishment commits an offence if the current certificate of registration for the establishment is not displayed prominently in the establishment.
Level 1 penal provision.
Note: Contravention of a penal provision is an offence—see section 17.05 and subregulation 4(1) of the Export Control (Orders) Regulations 1982. Contravention of a level 1 penal provision is punishable by a fine of 10 penalty units—see paragraph 4(1)(b) of those Regulations.
Note: Such a contravention is an offence of strict liability—see subregulation 4(2) of those Regulations. For strict liability, see section 6.1 of the Criminal Code.
Division 4.3—Renewal of registration
4.11 Application for renewal
(1) The occupier of a registered establishment may apply in writing to the Secretary for the renewal of the registration of the establishment.
(2) An application for renewal of the registration of an establishment must reach the Secretary not less than 28 days before the registration expires, or within such shorter period as the Secretary allows.
(3) Section 4.03 applies to an application for renewal except that the occupier need not give the Secretary information or a document that the Secretary already has.
(4) If an application for the renewal of the registration of an establishment is not made before the registration expires, a later application for renewal of the registration is to be treated as an application for its registration.
4.12 Renewal of registration
(1) The Secretary must renew the registration of an establishment if:
(a) the occupier applies, in accordance with section 4.11, for its renewal; and
(b) Export Control Orders that apply to the establishment are being complied with; and
(c) the equipment in the establishment:
(i) is being operated in an efficient and hygienic manner; or
(ii) if is not being operated at all, is capable of being so operated; and
(d) only those export operations for which the establishment is registered are being carried on in the establishment; and
(e) either:
(i) any relevant Commonwealth liability in relation to the establishment has been paid; or
(ii) if a liability undertaking is in effect in relation to the establishment, the under taking is being complied with; and
(f) the Secretary is satisfied that:
(i) the person in whose name the establishment is registered has not ceased to be a fit and proper person; or
(ii) if the occupier of the premises is a corporation, no person who manages or controls operations carried on in the establishment has ceased to be a fit and proper person; or
(iii) if the occupier of the premises is a partnership, none of the partners has ceased to be a fit and proper person;
as the case requires.
(2) If the Secretary renews the registration of the establishment, the Secretary must issue a certificate that specifies:
(a) the export operations for which the establishment is registered; and
(b) the number allotted to it.
4.13 Number and certificate
If the Secretary renews the registration of an establishment, the Secretary must issue to the occupier a new certificate of registration that specifies:
(a) the export operations for which the establishment has been registered; and
(b) the number allotted to it; and
(c) the period during which the establishment is registered.
Division 4.4—Changes of which Secretary must be notified
4.14 Secretary to be notified if occupancy ceases
If the person in whose name an establishment is registered ceases to be the occupier of the establishment, the person must, before or within 7 days after the date on which the person ceases to be the occupier, notify the Secretary in writing of the date on which the person ceased to be the occupier.
4.15 Registration lapses if occupancy ceases
If a person ceases to be the occupier of a registered establishment, the registration of the establishment lapses:
(a) if a notice under section 4.14 is received by the Secretary—at the end of the day on which the notice is received; or
(b) otherwise—at the end of the 7th day after the date on which the person ceased to be the occupier.
4.16 Notification of change in corporation or partnership
(1) If a corporation is the occupier of a registered establishment, and there is a change in any person who manages or controls the operations carried on at the establishment, the occupier must, within 7 days after the change, notify the Secretary in writing of:
(a) the date on which the change occurred; and
(b) the name and address of the person who has commenced to manage or control the operations carried on at the establishment.
(2) If a partnership is the occupier of a registered establishment, and there is a change in the membership of the partnership, the occupier must, within 7 days after the change, notify the Secretary in writing of:
(a) the date on which the change occurred; and
(b) the name and address of the person who has become a member of the partnership.
4.17 Continuation of registration after change in management or control etc
If:
(a) the Secretary has been notified of a change in accordance with subsection 4.16(1) or (2); and
(b) the Secretary is satisfied that the person who has commenced to manage or control the operations carried on at the establishment, or the person who has become a member of the partnership, is a fit and proper person;
the registration of the establishment continues.
4.18 Other events of which occupier must inform Secretary
The occupier of a registered establishment must give the Secretary written notice of any of the following events or circumstances within 7 days after the occurrence of the event or circumstance:
(a) if the occupier is an individual:
(i) he or she is convicted of a serious offence; or
(ii) he or she becomes bankrupt; or
(iii) he or she executes a deed of arrangement or a deed of assignment under Part X of the Bankruptcy Act 1966;
(b) if the occupier is a corporation:
(i) the occupier, or a person who manages or controls the operations carried on at the establishment, is convicted of a serious offence; or
(ii) a court orders that the occupier be wound up; or
(iii) a resolution is passed that it be wound up voluntarily; or
(iv) it enters into administration, as defined in section 435C of the Corporations Act 2001;
(c) if the occupier is a partnership:
(i) any of the partners is convicted of a serious offence; or
(ii) the partnership is dissolved.
Note: For the meaning of serious offence, see subsection 1.05(1).
4.19 Change of occupier’s name or address
If there is a change in the name or business address of the occupier of a registered establishment, the occupier must, within 7 days after the change, notify the Secretary in writing.
Note: Level 1 penal provision
Note: Contravention of a penal provision is an offence—see section 17.05 and subregulation 4(1) of the Export Control (Orders) Regulations 1982. Contravention of a level 1 penal provision is punishable by a fine of 10 penalty units—see paragraph 4(1)(b) of those Regulations.
Note: Such a contravention is an offence of strict liability—see subregulation 4(2) of those Regulations. For strict liability, see section 6.1 of the Criminal Code.
Division 4.5—Alterations to registered establishments
4.20 Alterations or additions to be approved
(1) Subject to subsection (2), an alteration or addition must not be made to:
(a) a registered establishment; or
(b) an establishment the registration of which has been applied for;
unless:
(c) the occupier submits to the Secretary a proposal for the alteration or addition, in accordance with any Export Control Order that applies to the establishment; and
(d) the establishment will, after proposed alteration or addition comply with the other Order; and
(e) the Secretary has approved the proposal in writing.
Note: An unauthorised alteration of, or addition to, a registered establishment is grounds for revocation of its registration—see section 4.29.
(2) Subsection (1) does not apply to a minor alteration or addition that does not or is not likely to:
(a) make the establishment unhygienic; or
(b) affect the manner in which prescribed goods can be inspected.
Division 4.6—Variation of export operations
4.21 Additional operations not to be carried out
The occupier of a registered establishment must not carry out, in the establishment, an export operation for which the establishment is not registered.
Note: Level 3 penal provision.
Note: Contravention of a penal provision is an offence—see section 17.05 and subregulation 4(1) of the Export Control (Orders) Regulations 1982. Contravention of a level 3 penal provision is punishable by a fine of 30 penalty units—see paragraph 4(1)(b) of those Regulations.
Note: Such a contravention is an offence of strict liability—see subregulation 4(2) of those Regulations. For strict liability, see section 6.1 of the Criminal Code.
4.22 Application for approval of additional operations
(1) If the occupier of a registered establishment wishes to carry on, at the establishment, an export operation for which the establishment is not registered, the occupier must apply in writing to the Secretary.
(2) Section 4.03 applies in relation to the application except that the occupier need not give the Secretary information or a document that the Secretary already has.
4.23 Secretary may vary registration
(1) If:
(a) the occupier of a registered establishment ceases to be a fit and proper person; or
(b) if the occupier of the establishment is a corporation—a person who manages or controls the operations carried on at the establishment is not, or ceases to be, a fit and proper person; or
(c) if the occupier of the establishment is a partnership—a member of the partnership is not, or ceases to be, a fit and proper person; or
(d) there are reasonable grounds to believe that circumstances in relation to the condition of, or the equipment in, a registered establishment have changed; or
(e) there are reasonable grounds to believe that the suitability of a registered establishment for the export operations for which it has been registered has changed;
the Secretary may:
(f) vary the conditions to which the registration of the establishment is subject in any way that the Secretary thinks fit; or
(g) vary the registration of the establishment by reducing the number of export operations that may be carried on at the establishment.
(2) In paragraph (1)(f), varying the conditions of registration includes imposing, adding or substituting a condition of registration.
4.24 New certificate of registration
If the Secretary varies the conditions of the registration of an establishment, or varies the registration of an establishment, in a way that requires an alteration to the establishment’s certificate of registration, the Secretary must issue a new certificate of registration to the occupier of the establishment within 7 days.
Division 4.7—Suspension of registration
4.25 Grounds for suspension
If:
(a) the Secretary has reasonable grounds to believe that a provision of the Act or an Export Control Order is not being complied with in respect of:
(i) the condition of a registered establishment; or
(ii) the carrying on of operations in a registered establishment; or
(iii) the export of prescribed goods that have been prepared in a registered establishment; or
(b) there are grounds for the revocation of the registration of an establishment;
the Secretary may, by notice in writing, suspend the registration of the establishment in respect of 1 or more of the export operations, either all or in part, for which the establishment is registered.
Note: For the grounds for revocation of the registration of an establishment, see subsection 4.29.
4.26 Period of suspension
(1) A suspension under section 4.25:
(a) remains in force for the period specified in the notice of suspension; and
(b) cannot be renewed.
(2) The period of suspension must not exceed:
(a) 28 days; or
(b) any longer period (not being longer than 2 months) determined by the Secretary in writing in respect of 1 or more, or all, of the export operations for which the establishment is registered.
4.27 Suspension for non‑payment of debts
(1) If the amount of a relevant Commonwealth liability in relation to an establishment is not paid within 30 days after the date on which it was due for payment, the Secretary may give the occupier of the establishment a notice in writing (notice of payment due).
(2) If, on the 8th day after the notice of payment due was served on the occupier, the amount has not been paid to the Department and the occupier of the establishment has not entered into an arrangement with the Secretary to pay it, the Secretary may suspend the registration of the establishment.
(3) For the purposes of subsection (2), if the notice is served by posting it to the occupier of the establishment, the notice is taken to have been served on the occupier on the 3rd working day after it was posted to the establishment.
4.28 Establishment not registered for certain purposes during suspension
If the registration of an establishment has been suspended in respect of 1 or more of the export operations for which the establishment is registered, the establishment is taken, during the period of the suspension, not to be registered for the purposes of any other Export Control Order that requires the establishment to be registered in respect of that operation.
Division 4.8—Revocation of registration
4.29 Grounds for revocation
(1) The Secretary may, by notice in writing, revoke the registration of an establishment in respect of 1 or more of the export operations for which the establishment is registered if there are reasonable grounds to believe that:
(a) the establishment has ceased to comply with any Export Control Order that applies to it; or
(b) export operations being carried on in the establishment have ceased to comply with any Export Control Order that applies to them; or
(c) alterations or additions have been made to the establishment, or to equipment in the establishment, otherwise than in accordance with any Export Control Order that applies to the establishment or equipment; or
(d) the equipment in the establishment is no longer adequate for the carrying on of operations in an efficient and hygienic manner; or
(e) any operations being carried on in the establishment are being carried on in a manner that may affect the hygienic preparation of prescribed goods; or
(f) prescribed goods, other than the prescribed goods in respect of which the establishment is registered, are prepared at the establishment; or
(g) the occupier of the establishment has failed to comply with:
(i) a provision of the Act; or
(ii) a condition of the registration; or
(iii) a requirement of section 4.16, 4.18 or 4.19; or
(iv) a notice of suspension under section 4.25; or
(v) a notice under section 4.31 requiring the occupier to cease export operations; or
(vi) an instruction about the preparation of prescribed goods issued by an authorised officer in the course of his or her duties; or
(h) any of the following persons is not, or ceases to be, a fit and proper person:
(i) if the occupier of the establishment is a corporation—the occupier or a person who manages or controls the operations carried on at the establishment;
(ii) if the occupier of the establishment is a partnership—a member of the partnership;
(iii) in any other case—the occupier of the establishment; or
(i) an authorised officer has been prevented, by the use of force, obstruction or intimidation, from performing his or her duties at the establishment.
(2) If:
(a) the registration of an establishment has been suspended under section 4.27; and
(b) the amount payable is not paid within 90 days of the suspension;
the Secretary may, by written notice to the occupier of the establishment, revoke the registration of the establishment.
(3) The Secretary may, by written notice to the occupier of a registered establishment, revoke its registration if:
(a) the occupier is convicted of a serious offence; or
(b) a person who manages or controls the operations carried on at the establishment is convicted of a serious offence.
Note: For the meaning of serious offence, see subsection 1.05(1).
4.30 Notice of revocation
(1) If the Secretary revokes the registration of an establishment, the Secretary must notify the occupier of the establishment, in writing, of the revocation.
(2) The revocation has effect when the notice of it is given to the occupier of the establishment, or on a later day specified in the notice.
Division 4.9—Suspension of operations
4.31 Suspension related to hygiene, inspection etc
(1) If there are reasonable grounds to believe that:
(a) prescribed goods are being prepared at a registered establishment under unhygienic conditions or in an unhygienic manner; or
(b) an animal from which prescribed goods may be derived is not being handled humanely in accordance with any applicable Export Control Order; or
(c) the proper inspection of prescribed goods at an establishment is not possible;
an authorised officer may direct the occupier of the establishment to suspend, wholly or in part, the carrying on at the establishment of 1 or more export operations specified in the direction until:
(d) prescribed goods can be prepared at the establishment under hygienic conditions or in a hygienic manner, as the case requires; or
(e) animals from which prescribed goods may be derived can be handled humanely in accordance with any applicable Export Control Order; or
(f) the proper inspection of prescribed goods at the establishment is again possible.
(2) If the period needed by the occupier to comply with the direction is likely to be longer than 2 hours, the direction must be given in writing.
4.32 Suspension at request of occupier
If the occupier of a registered establishment tells the Secretary in writing that export operations at the establishment will not be carried on for a period, the Secretary may suspend the carrying on at that establishment of any export operations that are specified in the notice for such period (not exceeding the period specified in the notice) and on such conditions, as the Secretary thinks fit.
Part 5—Electronic transmission of information and documents
5.01 Electronic communication systems
(1) For the purposes of section 24A of the Act, information or a document that is to be transmitted electronically from a person to another person for the purposes of a provision of the Act must be transmitted by means of the system known as EXDOC.
(2) The following may be given by being transmitted using that system:
(a) an application for an export permit;
(b) an amendment or withdrawal of such an application;
(c) a permit or the revocation of a permit;
(d) an application for a government certificate;
(e) a government certificate.
(3) A reference in paragraph (2)(a) to an application for an export permit includes a notice of intention to export.
(4) If that system is inoperative, the information must be given in the manner specified by the Secretary in writing.
Note: A document or information that is transmitted by means of the EXDOC system is taken to have been given—see subsection 24A(6) of the Act.
5.02 Use of identifying codes
(1) The Secretary must allot an identifying code to a person who applies to be registered to use the EXDOC system.
(2) The Secretary must take reasonable steps to ensure that a transmission by means of the EXDOC system to a person other than the Secretary:
(a) contains the identifying code of the person intended to receive it; and
(b) is transmitted to that person.
(3) The sender of an electronic transmission to the Secretary must authenticate the transmission by including the sender’s identifying code in the transmission.
Part 6—Export permits and related matters
6.01 Meaning of application for export permit
(1) In this Part:
(a) a reference to an application for an export permit for prescribed goods includes any other application or notice that has effect as an application for an export permit, whether or not it also has any other effect; and
(b) a reference to applying for an export permit includes giving such a notice.
(2) In particular, and without limiting subsection (1), a reference to an application for an export permit includes a notice of intention to export if the notice has the effect of an application for an export permit.
6.02 Issue of permits
If a person has applied for a permit to export prescribed goods in accordance with the requirements of any Export Control Order that applies to the goods, and there are reasonable grounds for believing that:
(a) the conditions and restrictions specified in any such Order have been complied with; and
(b) information given to the Secretary in, or in connection with, the application is correct and complete and that there is a sound basis for the information;
the Secretary may issue an export permit for the export of the goods.
6.03 Variation of permits after issue
(1) The Secretary may vary an export permit to:
(a) correct any error on the face of the permit; or
(b) if there has been a relevant change since the permit was issued, to update the information on the face of the permit.
(2) If the Secretary varies an export permit, he or she must notify the exporter in writing of the variation.
6.04 Validity of permit
An export permit is valid for 28 days after it is issued.
6.05 Permit may be revoked if goods do not comply etc
If there are reasonable grounds to believe, in relation to an export of prescribed goods, that:
(a) the conditions and restrictions applicable to the export in any Export Control Order have not been complied with; or
(b) information given to the Secretary in, or in connection with, an application for an export permit for the export is incorrect or incomplete or that there is not a sound basis for the information;
the Secretary may:
(c) reject the goods for export; and
(d) revoke any export permit issued for the goods.
6.06 Revoked permit to be surrendered
If an export permit is revoked, the exporter must surrender the permit to an authorised officer before the end of the working day after the day on which the permit was revoked.
Note: Level 1 penal provision
Note: Contravention of a penal provision is an offence—see section 17.05 and subregulation 4(1) of the Export Control (Orders) Regulations 1982. Contravention of a level 1 penal provision is punishable by a fine of 10 penalty units—see paragraph 4(1)(b) of those Regulations.
Note: Such a contravention is an offence of strict liability—see subregulation 4(2) of those Regulations. For strict liability, see section 6.1 of the Criminal Code.
6.07 Exporter to be responsible for goods
The person named as the exporter of prescribed goods in an application for an export permit for the goods is responsible for ensuring that, until the goods are exported, they continue to comply with any condition or restriction:
(a) that is specified in an Export Control Order; and
(b) that must be satisfied before the goods are exported.
6.08 Inspection and verification of condition of goods
(1) If:
(a) a person has applied for an export permit for prescribed goods and an authorised officer has had an opportunity to inspect the goods; and
(b) the authorised officer has reasonable grounds to believe that:
(i) any condition or restriction on the export of the goods in any applicable Export Control Order, being a condition or restriction that must be satisfied before the goods are exported, is complied with; and
(ii) the importing country requirements for the goods have been complied with;
the officer may give a written statement of verification to that effect.
(2) The authorised officer may carry out any inspection or examination, and take any sample, necessary for those purposes.
6.09 Inspection of goods if condition changed etc
If an authorised officer has reasonable grounds to believe that:
(a) an Export Control Order that applies to prescribed goods has not been complied with; or
(b) the condition of the goods has changed,
before or after the granting of an export permit for the goods but before the export of the goods:
(c) an authorised officer must inspect the goods; and
(d) if an export permit has been issued for the goods, the Secretary may suspend the permit until the inspection and any analysis of the goods is completed.
6.10 Abandonment of intention to export
(1) If prescribed goods have been inspected and passed for human consumption and the intention to export the goods is abandoned, the occupier of the establishment at which the goods are located must notify the Secretary in writing of that fact.
(2) The occupier must not remove the goods from the establishment until any applicable requirements of any Export Control Order have been complied with.
(3) A notice under subsection (1) has effect as a withdrawal of any application for a government certificate or export permit for the goods.
6.11 Inspection of suspect goods
If an authorised officer has reasonable grounds to believe that prescribed goods are not fit for export, the officer may:
(a) inspect the goods in accordance with any Export Control Order that applies to them; or
(b) retain the goods for the purpose of so inspecting them.
Division Division 4.2 - Export Control (Prescribed Goods — General) Order 2005 - How establishments become registered | Zoe