Kerry O'Brien (Tasmania, Australian Labor Party) Share this | Hansard source

On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, on the next day of sitting, I shall withdraw business of the Senate notices of motion Nos. 2, 3, 8 and 9 standing in my name for thirteen sitting days after today for the disallowance of the:

Agricultural and Veterinary Chemicals Code Amendment Order 2007 (No. 1); the

Agricultural and Veterinary Chemicals Code Amendment Instrument No. 1 (Trial Protocols) 2008; the

Listable Chemicals Product (Home Swimming Pool and Spa Products) Standard 2007; and the

Listable Chemicals Product (Joint Health Products for Dogs and Horses) Standard 2007.

I seek leave to incorporate in Hansard the committee’s correspondence concerning those instruments.

Leave granted.

The correspondence read as follows—

Agricultural and Veterinary Chemicals Code Amendment Order 2007 (No. 1)

Listable Chemicals Product (Home Swimming Pool and Spa Products) Standard 2007

Listable Chemicals Product (Joint Health Products for Dogs and Horses) Standard 2007

13 March 2008

The Hon Tony Burke MP

Minister for Agriculture, Fisheries and Forestry

Suite M1.26

Parliament House

CANBERRA  ACT  2600

Dear Minister

The Committee’s function is to examine all legislative instruments subject to disallowance or disapproval by the Senate to ensure that they comply with broad principles of personal rights and parliamentary propriety.

The Committee has considered three instruments made under the Agricultural and Veterinary Chemicals Code Act 1994 and identified the following matter that may not comply with those principles.

Agricultural and Veterinary Chemicals Code Amendment Order 2007 (No. 1)

Listable Chemical Product (Home Swimming Pool and Spa Products) Standard 2007

Listable Chemical Product (Joint Health Products for Dogs and Horses) Standard 2007

The Committee notes that section 17 of the Legislative Instruments Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken particularly where a proposed instrument is likely to have an effect on business. Section 18 of the Act provides that in some circumstances consultation may be unnecessary or inappropriate. The definition of ‘explanatory statement’ in section 4 of the Act requires an explanatory statement to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken. The Explanatory Statements that accompany these instruments make no reference to consultation. The Committee therefore seeks your advice on whether consultation was undertaken and, if so, the nature of that consultation.

The Committee also seeks an assurance that future explanatory statements will provide information on consultation as required by the Legislative Instruments Act.

The Committee would appreciate your advice on the above matter as soon as possible, but before 28 April 2008, to enable it to finalise its consideration of these instruments. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

18 June 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter dated 13 March 2008 seeking advice on any consultation on the making of three instruments: the Agricultural and Veterinary Chemicals Code Amendment Order 2007 (No. 1), the Listable Chemical Product (Home Swimming Pool and Spa Products) Standard 2007 and the Listable Chemical Product (Joint Health Products for Dogs and Horses) Standard 2007.

These instruments were developed by the previous government. I am advised that the amendment instrument’s purpose was to avoid duplication and ambiguity created by the label requirements specified in the Order compared with the label requirements specified in the standard. The label requirements in the standard are intended to take precedence over those specified in the Order.

I understand that the purpose of the standards was to give effect to Part 2A and Part 2B of the Agricultural and Veterinary Chemicals Code Act 1994 which contain provisions for the low- regulatory scheme for agricultural and veterinary chemicals. These provisions were introduced in 2003 so that industry would benefit from a decreased regulatory burden when following the registration process for low-risk agricultural and veterinary chemical products. Under these arrangements, the listing of products, or classes of products, allows for them to be registered on application against established standards.

The decision as to which products, or classes of products, should be listed was made by the Australian Pesticides and Veterinary Medicines Authority (APVMA) in consultation with industry stakeholders and representatives of state government agricultural and primary industry departments commencing in 2005. This led to written statements on the consultations held, and advice given to the APVMA being provided to Senator the Hon. Richard Colbeck, the then Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry, in accordance with subsections 56C(2) and 56ZU(4) of the code.

The Department of Agriculture, Fisheries and Forestry is aware that section 17 of the Legislative Instruments Act 2003, requires a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken where a legislative instrument is likely to have an effect on business. The department accepts that it should have included information on any consultation undertaken in the associated explanatory statement and will ensure that future explanatory statements provide information on consultation as required by the Legislative Instruments Act 2003.

While the code allowed the Parliamentary Secretary to direct the APVMA to conduct a round of formal public consultation, I am informed that at the time, he was satisfied that sufficient consultation had occurred with all stakeholders and, accordingly, decided not to require the APVMA to publish a notice in the Gazette seeking further comment.

Please accept my apologies for the delay in responding to your letter.

Yours sincerely

Tony Burke

Minister for Agriculture, Fisheries and Forestry

Agricultural and Veterinary Chemicals Code Amendment Instrument No. 1 (Trial Protocols) 2008

13 March 2008

The Hon Tony Burke MP

Minister for Agriculture, Fisheries and Forestry

Suite M1.26

Parliament House

CANBERRA  ACT  2600

Dear Minister

The Committee’s function is to examine all legislative instruments subject to disallowance or disapproval by the Senate to ensure that they comply with broad principles of personal rights and parliamentary propriety.

The Committee has considered the Agricultural and Veterinary Chemicals Code Amendment Instrument No. 1 (Trial Protocols) 2008 made under subsection 31(1) of the Agricultural and Veterinary Chemicals (Administration) Act 1992 and identified the following matters that may not comply with those principles.

Section 17 of the Legislative Instruments Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken particularly where a proposed instrument is likely to have an effect on business. Section 18 of the Act provides that in some circumstances consultation may be unnecessary or inappropriate. The definition of ‘explanatory statement’ in section 4 of the Act requires an explanatory statement to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken. The Explanatory Statement that accompanies this instrument makes no reference to consultation. The Committee therefore seeks your advice on whether consultation was undertaken and, if so, the nature of that consultation.

Further, the Explanatory Statement contains a footnote which explains the accepted meaning of the phrase “application for chemical products”. It would assist in achieving clarity and certainty if the interpretation section of the principal Instrument (section 4) were amended to include this definition.

The Committee would appreciate your advice on the above matters as soon as possible, but before 28 April 2008, to enable it to finalise its consideration of this Instrument. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

18 June 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter dated 13 March 2008 seeking advice on any consultation undertaken on the amendment instrument, Agricultural and Veterinary Chemicals Code Amendment Instrument No. 1 (Trial Protocols) 2008, made on 3 January 2008 by the Chief Executive Officer of the Australian Pesticides and Veterinary Medicines Authority (APVMA).

The instrument’s purpose was to amend the Agricultural and Veterinary Chemicals Code Instrument No. 2 (Modular Assessment Fees) 2005 by providing a significantly reduced application fee for trial protocols requiring residues assessment. I am advised that this responded to concerns raised by the six companies affected by the fee when it was initially introduced. This fee was reduced from $2025 to $1070, and in view of the numbers involved, I understand that the APVMA regarded the change as being minor and wider consultation was not, therefore, considered appropriate.

The APVMA is aware of requirements of section 17 of the Legislative Instruments Act 2003, which require a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken where a legislative instrument is likely to have an effect on business. The APVMA accepts that it ought to have included information in the associated explanatory statement about the complaints it had received and that the amendment lessened the burden on applicants.

Relating to the footnote in the explanatory statement to the amendment, the APVMA accepts the Senate Standing Committee’s point that inclusion of the definition in the interpretation section of the Principal Instrument (section 4) would improve clarity and certainty.

The APVMA notes that the Principal Instrument should not have used the expression ‘application for chemical products’ but throughout should have referred to ‘application for registration of chemical products’ and also, where appropriate, ‘application for a permit in relation to chemical products’. I am informed that the error was noticed only after the amendment instrument had been prepared. The footnote was inserted simply to overcome the use of the shortened expression in the Principal Instrument. The shortened expression is in very common usage by applicant companies in the agvet chemicals industry and by the APVMA, and it is most unlikely that it would cause any confusion. Nonetheless, it is, strictly speaking inaccurate as it is not consistent with the language in the Agricultural and Veterinary Chemicals Code Act and the Agricultural and Veterinary Chemicals Code Regulations.

At the next opportunity, the APVMA intends to consolidate the three existing Agricultural and Veterinary Chemicals Code Legislate Instruments and will ensure the shortened expression is not used at all and that the full expressions ‘application for registration of chemical products’, ‘application for a permit in relation to chemical products’, and now ‘application for a trial protocol in relation to chemical products’ are used, as appropriate, throughout the new Principal Instrument. This will mean that neither the footnote nor a provision in the interpretation section of the Principal Instrument would be required.

Please accept my apologies for the delay in responding to your letter.

Yours sincerely

Tony Burke

Minister for Agriculture, Fisheries and Forestry

On behalf of the Standing Committee on Regulations and Ordinances, I give notice that 15 sitting days after today I shall move:

That the Torres Strait Regional Authority Section 142S Declaration 2008, made under subsection 142S(1) of the Aboriginal and Torres Strait Islander Act 2005, be disallowed. [F2008L00357]

I seek leave to incorporate in Hansard a short summary of the matter raised by the committee.

Leave granted.

The summary read as follows—

Torres Strait Regional Authority Section 142S Declaration 2008

This instrument specifies the membership of the Torres Strait Regional Authority.

Sub-rule 7(6) states that ‘this section displaces section 142Y of the Act’. It is not clear what the authority for this ‘displacement’ is. Paragraph 142S(2)(c) of the Act provides that the Minister may issue a notice that provides for the method and timing of election of certain types of TSRA members. That appears to be the purpose of rule 7 in this Determination. However neither section 142S nor section 142Y of the Act makes specific reference to ‘displacing’ section 142Y. It is also not clear what the word ‘displaces’ means in this context. The Committee has written to the Minister seeking further advice on this matter.