Draft Export Control Rules 2020 - Milk and Milk Products

Consolidation of milk and egg rules

Feedback

Consolidating the draft milk rules with the egg rules, where a significant number of the provisions are identical, is sensible and supported, on the basis that it may increase efficiencies and reduce costs to exporters.

Response

We are considering combining the draft milk and egg rules into one set of rules due to the level of similarity in how the two commodities are regulated.

We are still weighing up the potential advantages and disadvantages of doing this.

Over time, a consolidated set of rules is anticipated to reduce administrative costs and increase efficiencies for government and industry.

Clear and unambiguous legislation

Feedback

This is an opportunity to ensure the legislation is clear and unambiguous. This will make it easier for users to understand what is required and implement export requirements.

The wording of a number of specific provisions requires further consideration.

Response

In keeping with the feedback, various parts of the draft milk rules are being reviewed to ensure the wording of provisions is clear and unambiguous. For example, we are reviewing the wording of provisions setting out requirements that apply for declarations of compliance, imported goods that are exported in the same covering, and to the application of trade descriptions to products that are not for retail sale. 

Provisions will continue to be refined to ensure they are fit for purpose and correct.

Prescribed goods

Feedback

The scope of products that are prescribed goods is uncertain (e.g. milk as a minor component of the finished product and milk-derived ingredients). It is unclear why some of the products listed as non-prescribed goods are excluded from the application of the Act.

Response

The draft milk rules specify the products that are prescribed goods and provides clarity on products that are non-prescribed goods. The current list of products at subclause MI-09(2) is intended to have the same effect as Division I of Part 2 of the Export Control (Milk and Milk Products) Orders 2005 and the department’s policy and guidelines. Listing the products that are non-prescribed goods, for example, ice-cream and colostrum, provides greater certainty for producers and exporters in knowing when export legislation applies.

We will consider whether the draft milk rules need to be amended to clarify the scope of prescribed goods.

Clear and consistent definitions

Feedback

The definitions in the draft milk rules need to be consistent with the Australia New Zealand Food Standards Code and with international standards such as the Codex Alimentarius.

Response

Where it is appropriate and applicable for export, definitions of terms in the draft milk rules have been aligned with the Australia New Zealand Food Standards Code and Codex Alimentarius.

Feedback

The definition of ‘food’ should be clear to ensure there is no confusion between human food and animal feed.

Response

Definitions in the draft milk rules must be consistent with the definitions in the Export Control Bill 2019, which defines food.
To assist readers, a note will be included in subsection MI-09(1) in the draft milk rules to direct readers to the definition of ‘food’ provided by the Bill.

10kg/litre limit for small export consignments

Feedback

The current 10kg/litre limitation for non-prescribed milk products has supported growth across industry and has provided broad benefits to the Australian economy. The status quo is supported by industry.

Any changes to the current limits would significantly impact the export of certain goods.

Response

Changing the 10kg/litre rule is outside the scope of this project, and would require industry support and policy approval before any changes could be incorporated into the draft milk rules. We will ensure key industry participants are kept informed of any proposed changes to these limits.

Timely decision making

Feedback

Decision making timeframes (consideration periods) are longer than the timeframe provided in the current legislation.

Response

Under the Export Control Bill 2019, the draft milk rules must set timeframes for the Secretary (or a delegate) to make certain decisions in relation to registered establishments and approved arrangements. The proposed timeframes provided by the draft milk rules are 120 days for applications for registration and approval of an arrangement, and 60 days for variations and renewals. These timeframes are a maximum timeframe only. The timeframes are still under consideration. Feedback on the proposed timeframes is welcome.

Cost recovery arrangements

Feedback

Changes to cost recovery are not part of the scope of the consultation. However, changes to the new agricultural export legislative framework may lead to consequential changes to charges.

Response

Export legislation provides the authority for the Australian Government to recover costs for export regulatory activities. While changes to cost recovery arrangements are not part of the scope of improving agricultural export legislation, the legislation that supports cost recovery arrangements will need to be replaced to fit the new framework.

The department regularly reviews and updates how we impose cost recovery fees and charges. This allows for accurate and efficient charging, and ensures that costs are correctly allocated to industry.

Any new charges are subject to our cost recovery arrangements. These are in line with the Australian Government Cost Recovery Guidelines and the charging framework set out in relevant legislation.

Ensuring no impact on free flow of trade

Feedback

Particular care is encouraged to ensure the draft rules do not impact the free flow of trade.

Response

While the improvements being made to the export legislation will alter the appearance of the legislation, the overall level of regulatory oversight provided will be maintained to support market access.

Trading partners have been engaged and informed from the commencement of this project to ensure they are supportive of the new framework so that trade will be maintained. Engagement will continue. No concerns have been raised to date.

Powers of the Secretary of the Department of Agriculture

Feedback

The power of the Secretary of the Department of Agriculture to make or change rules is supported and encouraged.

Response

The Export Control Bill 2019 enables the Secretary to make rules (and changes to the rules) for technical and operational reasons to ensure the export legislation operates as intended.

This will allow the Australian Government to be more responsive to changing market conditions and importing country requirements, as well as the uptake of innovation within the industry, without undue delay.

The Secretary will need to comply with the ordinary processes of government in making rules, including obtaining appropriate authority for changes in policy and undertaking relevant regulatory impact analysis.  Appropriate and reasonable consultations with stakeholders will need to be undertaken.

The rules will be disallowable instruments, just as the current orders are.

Transitional arrangements

Feedback

Industry should be kept informed of transitional arrangements, including any transition period.

Response

We are developing legislation that will enable regulatory controls in the existing legislation to transition, where possible. For example, existing registrations and approvals will carry across to the new framework when it commences. This will be done via the Export Control (Consequential Amendments and Transitional Provisions) Bill 2019 (C&T Bill) and related provisions in the commodity rules.

We expect to provide the drat C&T Bill in 2019 for comment. We will work with relevant stakeholders to ensure operations are not interrupted and there is business continuity.

We will continue to work collaboratively with stakeholders as the legislation is drafted.

Guidance materials

Feedback

The development of industry guidance documentation is encouraged.

Response

We have developed supporting information to assist industry in understanding the new legislation. Further guidance on the new legislation will be made available as the legislation is developed and refined. We are also reviewing guidance material to ensure that it is updated, and reflects the new legislative framework.